BAGESHARI TEWARI Vs. NANDOO SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal in a suit for redemption of a mortgage. The suit has been dismissed by the Courts below on the ground that it is barred by limitation. It is necessary at this stage to state the relevant portions of the mortgage deed. It was executed on Kuar Badi 15, Sambat 1926, corresponding to 5 October 1869; the mortgage money was Rs. 12. The property covered by the mortgage comprised an area of 1 bigha kham. The mortgagee was put in possession of the mortgaged property and given the right to cultivate the field himself or get it cultivated by others. He was to pay Rs. 1-9-0 on account of the rent of the field and was given the right to appropriate the profits in lieu of interest. It then provided that when the mortgagor repaid the sum of Rs. 12 in the month of any Jeth within ten years the field would be redeemed. The words in the vernacular are: Jab Jethi Jethi andar das baras ke rupiya barah de den tab khet chhora len.

(2.) If the field was not redeemed within ten years the mortgagor will have no concern with the field and the jama thereof and the creditor will become the owner of the field. The contention of the mortgagee was that the right to redeem and to recover possession of the mortgaged property accrued on 1 Jeth following the Kuar of 1926, that is to say, some time in June 1870, and therefore the plaintiff's suit instituted more than 60 years after June 1870 was barred by Art. 148, Lim. Act. The Courts below have given effect to this contention and dismissed the plaintiff's suit instituted on 8 December 1930 as barred by time. In second appeal it is contended before me that the suit is not barred by time, inasmuch as the right to redeem accrued after the expiry of ten years from 5 October 1869, the date of the mortgage. Reliance is placed by the learned advocate for the appellant on the case in Vadju V/s. Vadju (1880) 5 Bom 22, where following two earlier cases of the same Court and a dictum of Lord Kingsdown in Prannath Roy Chowdry V/s. Rookea Begum (1857) 7 M.I.A. 323, at p. 355 to the effect that Where a mortgage is subject by law to be foreclosed the title to foreclose is in the nature of a limit to the title to redeem.

(3.) Westropp, C.J., held that the general principle as to redemption and foreclosure is that in the absence of any stipulation, express or implied, to the contrary, the right to redeem and the right to foreclose must be regarded as co- extensive. The submission is that the mortgagee was not entitled to foreclose before the expiry of ten years and as such, the mortgagor is also not entitled to redeem before the expiry of ten years. The contention of the learned Advocate for the respondent is that the principle "the right to redeem and the right to foreclose must be regarded as co-extensive" is subject to any stipulation, express or implied, to the contrary and that this exception was made quite clear by their Lordships of the Privy Council in Bakhtawar Begam V/s. Husaini Khanum A.I.R. 1914 P.C. 36, at p. 199, where it was observed that there was nothing in law to prevent the parties from making a provision that the mortgagor may discharge the debt within the specified period and take back the property. If the matter, therefore, rested only on authorities mentioned by me so far, the question that one has got to see in a matter like this is as to whether there is any covenant in the mortgage- deed by which the parties made a provision entitling the mortgagor to discharge the debt within the period of ten years. It is noteworthy that in the present case there is no condition in the mortgage-deed to the effect that the mortgage was for a period of ten years certain. That condition has got to be deduced from the provision which gives the mortgagor the right to redeem, and that right is given in the sentence that when the mortgagor repays the sum of Rs. 12 in the month of any Jeth within ten years (Jab Jethi Jethi andar das baras) the mortgagor will get the field redeemed. This is giving clearly a right to the mortgagor to redeem at any time within ten years. It is true that the right of foreclosure can under the circumstances of this case arise only after the expiry of ten years, because till that time if the mortgagor does not choose to redeem, the relationship of a mortgagor and mortgagee subsists between the parties, but the mortgagor has, according to my reading of the document, the right to redeem at any; time within ten years.