HUSAINI KHANAM Vs. HUSAIN KHAN

JUDGEMENT

(1.) The High Court found on the facts that the plaintiff Husaini Khanam was, as she alleged, the daughter of Fateh Ali. As to the issue whether the plaintiff's suit was barred by the sixty years rule of limitation, and as to the other points of law raised by the appeal the judgment of the Court--after discussing the documentary evidence as to the original mortgage of 1830, and its bearing upon the question whether that mortgage was redeemable within nine years or only after the expiration of the period--continued as follows:

(2.) Ordinarily a mortgagor cannot, before the time limited for payment to the mortgagee expires, take proceedings to redeem. The reason for this is that it was the agreement of the parties that the mortgage should, during the intervening time, remain as security for the money advanced, and therefore it is not competent for either party to disturb that relation--Brown V/s. Cole (1844) 14 Sim., 427. Westropp, C.J., in his judgment in Vadju V/s. Vadjv (1880) I.L.R., 5 Bom., 22 says: "The general principle as to redemption and foreclosure is that in the absence of any stipulation expressed or implied to the contrary the right to redeem and the right to foreclose must be regarded as co-extensive." In that case the stipulation in the mortgage deed was that the mortgagor would pay the debt within ten years and redeem the mortgaged property, and it was held that a suit for redemption instituted within the ten years was premature, the mere use of the word "within" not being a sufficient indication of an intention that the mortgagor might redeem in a less period than ten years. So in Raghubar Dayal V/s. Budhu Lal (1885) I.L.R., 8 All., 95, in which the stipulation was that the principal and the interest should be paid at the promised time (that was in ten years), it was held that the advance by the mortgagee to the mortgagor was for a period of ten years certain, and that the mortgagor was not entitled before that period had expired to redeem the property. The principle acted upon in these cases is embodied in the Transfer of Property Act. Section 60 provides that "at any time after the principal money has become payable," the mortgagor may redeem. Section 62 prescribes in the case of a usufructuary mortgage, that the mortgagor has a right to recover possession of the property where the mortgagee is authorized to pay himself from the rents and profits the interest of the mortgage debt, "when the term (if any) prescribed for the payment of the mortgage-money has expired, and the mortgagor pays or tenders to the mortgagee the principal money, &c." Also in Section 67, in which the right of foreclosure or sale is prescribed, the language is as follows: "In the absence of a contract to the contrary the mortgagee has, at any time after the mortgage money has become payable to him, &c.," a right to obtain an order for foreclosure or sale. The principal money only becomes payable when the payment becomes obligatory upon the mortgagor. Lindley, M.R., in the case of De Braam V/s. Ford L.R., 1900, 1 Ch., 142, commenting on the meaning of the words time of payment contained in a bill of sale, observes: "To my mind the expression is unambiguous: it means the time at which payment is to become obligatory, the time at) which the borrower must pay and after which, if he does not pay, he can be sued for payment."

(3.) On the evidence afforded by the proceeding before the Collector we are of opinion that the agreement of the parties was that the advance made by Ata-ullah Khan was to be left outstanding for a period of nine years, and that within that period the mortgagee could not foreclose the mortgage nor could the mortgagors redeem it. The learned Subordinate Judge appears to have been of this opinion also, for he says in his judgment: "The mortgage was, no doubt, for a term of nine years." But then he holds that by reason of the statement by the plaintiffs in the plaint that the debt was actually satisfied out of the usufruct within the period, the plaintiffs could not rely on this fact. He also seems to hold that it was optional with the mortgagor to redeem whenever he pleased, and that therefore the period of limitation ran from the date of the mortgage. After referring to some rulings he says: "Having regard to the terms of the mortgage in this case and to the plaintiffs allegations I am bound to hold, following the above rulings, that the period of limitation in this case will run from the date of the mortgage, viz., the 6 of January 1830, and the suit was beyond time on the 6 of January 1899, when it was instituted." We are unable to agree with him as to this. The time began to run, we think, from the expiration of the term of nine years, and the mere fact that the plaintiffs alleged that the mortgage debt was satisfied within this period, does not affect the question.