CHANDU ALIAS SHINIVASA PAI Vs. KOAJA POOJARI

JUDGEMENT

(1.) IN the present case the mortgage provides for the re-payment of part of the mortgage- debt at the end of March 1910 and for the re-payment of the rest "within the end of March 1952" which, we think, must mean on or before the 31st March 1952. There has been some difference of opinion as to whether under a provision of this kind a mortgagor is entitled to redeem before the end of the period. It was held in Vadju v. Vadja 5 B. 22 and in Husaini Khanam v. Husain Khan 29 A. 471 : A.W.N. (1907) 133 : 4 A.L.J. 375 that he was not. On the other hand it was held that he was, in Rose Ammal v. Rajarathnam Ammal 23 M. 33 and in Chinnasami Reddiar v. Krishna Reddy 16 M.L.J. 146 and in Purna Chandra Sarma v. Peary Mohan Pal 15 INd. Cas. 287 : 39 C. 828 : 17 C.W.N. 149. The recent decision of the Privy Council in Bakhtawar Begam v. Husaini Khanam 23 INd. Cas. 355 : 18 C.W.N. 586 : 26 M.L.J. 474 : 12 A.L.J. 473 : 19 C.L.J. 477 : (1914) M.W.N. 411 : 15 M.L.T. 389 : 16 Bom. L.R. 344 : 1 L.W. 813 : 36 A. 195 (P.C.) on appeal from Husaini Khanam v. Husain Khan 29 A. 471 : A.W.N. (1907) 133 : 4 A.L.J. 375 lays down that ordinarily and in the absence of a special stipulation the mortgagor is not entitled to redeem before the close of the period for which the mortgage was executed. Their Lordships observed that the language used in that case, "in nine years," was certainly ambiguous, and that much might be said in favour of the conclusion of the Allahabad High Court. It was, however, unnecessary to decide the point. Notwithstanding these observations, we think, we are at liberty to hold, following Rose: Ammal v. Rajarathnam Ammal 23 M. 33 and Chinnasami Reddiar v. Krishna Reddy 16 M.L.J. 146 that a provision providing for payment by the mortgagor on or before a certain date is a sufficient indication of an intention to allow him to redeem before that date, especially where, as here, a stipulation is made applicable only to the balance of the mortgage-debt. IN Bir Mahamed Rowther v. Nagoor Rowther 25 INd. Cas. 576 : 16 M.L.T. 163 : 27 M.L.J. 483 there appears to have been a fixed period for payment. We must accordingly reverse the decree and remand the case for disposal according to law. The costs will abide the result. The memorandum of objections is dismissed.