MATHURA DAS Vs. RAJA NARINDAR BAHADUR PAL

JUDGEMENT

(1.) BY the deed dated February 17, 1880, Rajah Bhawani Ghulam Pal, the defendant, now represented by the respondents (the first of whom alone defends this appeal), mortgaged and hypothecated a certain mouzah to Cheddi Lal, the predecessor in title of the plaintiffs, who are now appellants, to secure the principal sum of Rs. 19,157. The deed then proceeded thus: "And I covenant and record that I shall pay off without any objection the said amount in full, principal and interest, at the rate of Rs. 1.6. per cent, per mensem, within a year, without raising any objection whatever. If I fail to pay off the amount within the fixed term, the said bankers shall be competent to realize the amount by any means possible, from my person and the properties mortgaged, and from other properties belonging to me, and I or my heirs neither have nor shall we have any objection whatever to it. Until the payment in full of this amount, principal and interest, I shall not transfer, either directly or indirectly, the mortgaged property to any one else, and if I do, such a transfer should be deemed to be false and inadmissible. The amounts paid by me should be first credited to the payment of interest, and the balance should be credited to that of the principal, and I shall have them entered on the back of the document."

(2.) NO payment having been made, the plaintiffs instituted this suit on June 19, 1888, for the usual mortgage decree. The Subordinate Judge of Gorakpur passed a decree in the usual form for the sum of Rs. 22,313, being the principal of the loan with one year's interest, and a further sum for costs. The rest of the claim he dismissed. He held, on the authority of a decision of the High Court in a similar case, that the mortgage deed does not provide for interest after the first year. Being then pressed to give damages by way of interest, he held that such a claim being compensation for breach of a contract was barred by Articles 115 and 116 of the Limitation Act.

(3.) BUT it is not necessary to dwell further on this point, because their Lordships think that the Courts below have misconstrued the deed. Indeed, they do not find in the judgments any attempt to arrive at the meaning of the deed by an examination of its terms. Both Courts appear to have followed decisions in other cases, according to which it would seem that in the High Court of Allahabad a fixed rule of construction has been laid down for transactions of this kind without much regard to what the parties have actually said.