GANGA RAM Vs. NATHA SINGH

JUDGEMENT

(1.) In this case the plaintiffs sue for redemption of five mortgages. Two of those mortgages, the earlier two in date, were usufructuary mortgages; the other mortgages were not usufructuary, but with regard to the next two--for as to the fifth one, there is no question at all--there is a recital that interest is to be paid upon the sum borrowed

(2.) Now, the whole point of the case is whether that interest in this third and fourth mortgage does or does not form a charge upon the property. The learned trial Judge held that it did form a charge on the property, and therefore granted redemption only upon term of paying the principal sums and the interest. That decree was reversed upon appeal, and the High Court allowed redemption upon payment of the principal loan only. Their Lordships find that, in the judgment of the learned Judges in the High Court, they state with perfect correctness what their Lordships apprehend is undoubted law. They say: "The general rule is that the mortgagee in the absence of any contract to the contrary is entitled to treat the interest clue under the mortgage as a charge on the estate."

(3.) Their Lordships have been entirely unable to find anything in the deeds which would serve to displace that general rule. The learned Judges seem to have gone particularly upon the case of Alia Khan V/s. Kanshi Ram (1913) P.R. No. 45 of 1913.