JEUT KOERI Vs. MATHURA KOERI

JUDGEMENT

(1.) This is an appeal arising out of a suit for redemption. On 5 August 1899 the plaintiffs predecessors borrowed a sum of Rs. 592-8-0 from the predecessors of the defendants and executed a single document for it. As found by the lower appellate Court, the probability is that the profits of the property sought to be mortgaged were not sufficient to cover the interest on the whole amount, and accordingly there was a provision in the document that the mortgagees were entitled to appropriate the profits of the property in lieu of interest on a sum of Rs. 392-8-0. As to the balance, it, was provided that the payment of this sum, along with interest at 2 per cent. per annum, shall be compulsory at the time of redemption.

(2.) The plaintiffs offered to redeem the property on payment of Rs. 392-8-0, whereas the defendants claimed that they must pay Rs, 200 plus interest. The Court below has accepted the contention of the defendants and has passed a conditional decree for payment of the entire amount before redemption. In appeal the learned vakil for the appellants has argued that the payment of Rs. 200 was not made a charge on this property and that therefore the defendants are not entitled to insist on its payment before redemption. It is further urged that even if it were to create a charge on the property, the covenant was a clog on redemption and was not enforceable.

(3.) Reliance has been placed strongly on the remark of the lower appellate Court that it does not appear that there is any charge on the property so far as the sum of Rs. 200 with interest was concerned. The learned Judge was forced to make these remarks in view of the ruling cited before him which is reported as Sheo Shankar V/s. Parma Mahton (1904) 26 All 559. The facts of that case are however different inasmuch as there were two different documents. It must also be borne in mind that the question whether a particular document does or does not create a charge depends on its particular forms, and therefore cases as regards other documents are not always a good guide. But, if by that case it was intended to lay down that when there is a subsequent contract that there should be no redemption of a prior mortgage before payment of the amount due on the second document, entered into at a subsequent period and for an additional consideration, it is either a clog on the redemption of the first mortgage and therefore unenforceable, or does not create any charge at all, than the view is not quite in consonance with the opinions expressed in several other cases of this Court, viz., Ranjit Khan V/s. Ramdhan Singh (1909) 31 All 432, Brij Lal Singh V/s. Bhawani Singh (1910) 32 All 651 and Bhikam Singh V/s. Shankar Dayal Singh (1909) 1 IC 345 and it must be deemed to have by implication been overruled by the Pull Bench case of Har Pershad V/s. Ram Chunder AIR 1922 All 174 (F B). In that case in the judgment of Banerji, J., with which Wallach, J., fully agreed it was clearly laid down that where in a subsequent document there was a stipulation that without payment of the two sums the property was not to be redeemed, the effect of the clause was to create a further mortgage or the property was made security for the additional debt.