RAM KISHORE AHIR Vs. RAM NANDAN RAM

JUDGEMENT

(1.) This is an appeal by the defendant in a suit to redeem two mortgages dated 15 December 1909 and 6 September 1901, executed by one Magni Ram, father of the plaintiff, in favour of Ram Kishore Ram, the predecessor of the defendants. In this appeal we are concerned with the mortgage dated the 6th September 1901, which was executed to secure a debt of Rs. 699. Under the terms of this document Magni Ram made a usufructuary mortgage of certain fixed rate and occupancy holdings for a sum of Rs. 500 and as the usufruct of the property was not sufficient to keep down the interest on the entire amount of Rs. 699, he agreed to pay interest at the rate of 1 per cent. per mensem on Rs. 199. There was a distinct stipulation in the mortgage bond that the mortgagor was entitled to take the document and the fields mortgaged on payment of the entire sum of Rs. 699 in one lump sum towards the close of the month of Jeth of any year. The document was signed by the mortgagor through the pen of Ramnaresh Lal, patwari, and the wording of the signature is pregnant with significance. "Likhitan Mayni Ram dastawez rehannama 669-ke likhil so sahi, baqalam Ramnaresh Lal patwari ke Nishani Magni Ram Ahir."

(2.) The plaintiff seeks to redeem this mortgage on payment of Rs. 500 only and not on payment of Rs. 699 and interest due. It was contended on his behalf that Rs. 199 was not charged upon the mortgaged property; that the stipulation as to the payment of Rs. 199 at the time of redemption along with Rs. 500 was a clog on the equity of redemption: that Rs. 199 was a simple money debt payable on demand, and that the mortgagee's claim to this was time barred under Article 132, Indian Limitation Act.

(3.) The defendants pleaded that Rs. 199 was charged on the mortgaged property and was payable along with the sum of Rs. 500 towards the close of the Jeth of any year, and the stipulation as to its payment along with the sum of Rs. 500 was not a fetter on the equity of redemption, and the claim as to this sum was not time barred.