BIR MOHAMAD ROWTHER Vs. NAGOOR ROWTHER,

JUDGEMENT

(1.) WE must follow the Privy Council Ruling in Bakhtawar Begam v. Husaini Khanaum (1913) I.L.R. 36 A. 195. S.C 26 M.L.J. 474 and if there are some observations in Rose Ammal v. Rajaratna Ammal (1898) I.L.R. 23 M. 33 which cannot be reconciled with that ruling, those observations must be held to be overruled. The effect of the Privy Council ruling is that the mortgagor cannot be allowed to redeem the mortgagee before the expiry of the term mentioned in the mortgage deed unless there is a contract to the contrary in favour of the mortgagor. There is no evidence of any such contract in this case. The usufructuary mortgagees (plaintiffs) are therefore entitled to remain in possession for the seven years term agreed upon between themselves and the mortgagors and hence they cannot be redeemed by the appellant (3rd defendant) who is a purchaser of the mortgagors right) in this suit which was brought before the term of 7 years expired.

(2.) THIS is the only arguable point in this second appeal and as that has failed we dismiss the. second appeal with costs.