JAGARDIP RAI Vs. NAUBAT RAI

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the plaintiffs sought to redeem certain property. The mortgage was dated the 23rd of December 1899 for the term of eight years. The amount advanced at the time was the sum of Rs. 125. The Court of first instance decreed the plaintiffs claim for redemption on payment by them of Rs. 125 and some interest. The lower Appellate Court modified the decree of the Court of first instance and reduced the sum payable by the plaintiffs for redemption. A learned Judge of this Court affirmed the decree of the lower Appellate Court and the present appeal is under the Letters Patent against the decree of the learned Judge of this Court. We have read the mortgage and considered its provisions. Reading the document as a whole it is absolutely clear in our opinion that the mortgage was a mortgage to secure the sum of Rs. 125. A distinction was made between Rs. 80 and Rs. 45. The usufruct of the property was sufficient to keep down the interest upon Rs. 80 only. It was insufficient to pay the interest upon the balance Rs. 45. Consequently it was provided that interest should run on Rs 45 and the mortgage ends up with the provision that the property should not be redeemable unless not only the sum of Rs. 80 but also the sum of Rs. 45 and any interest which had accrued thereon should be paid. If this view of the mortgage is correct then it is clear that the decision of the Court of first instance ought to be restored. We have no doubt that the view we have suggested is the correct one. It was clearly the intention of the parties, such intention being drawn from the document read as a whole. We allow the appeal, set aside the decree of the learned Judge of this Court and also of the lower Appellate Court and restore the decree of the Court of first instance with costs in all Courts, including in this Court fees on the higher scale. We extend the time to three months from this date.