BAZ BAHADUR SINGH Vs. RAGHUBIR PRASAD

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a redemption suit. There was a mortgage executed by one Durga Singh in favour of three persons Gaya Prasad and two others, for a sum of Rs. 5,700 on the 11 of January 1877. The mortgage was a usufructuary one. The plaintiffs who claimed to have received the property on foot of a will executed by Durga Singh, seek to redeem it on payment of a certain sum of money. The defendants are transferees of the original mortgagees. The question is what is the amount that has to be paid in order to effect redemption. On behalf of the appellants, it has been contended that the lower Court should not have allowed the mortgagees a sum of Rs. 122 and the interest thereon, a sum of Rs. 20-12-0, on certain grounds. We have to see whether the appellants are right.

(2.) It appears that one of the items that make up the sum of Rs. 5,700, the total mortgage money, was a sum of Rs. 1,011 agreed to be paid by the mortgagees and to be received by the mortgagor, at the registration. Accordingly in the mortgage deed the mortgagor said as follows: "To-day I received a further sum of Rs. 1,011 in cash at the time of registration." The appellants case was that out of this sum only Rs. 889 was paid before the Sub-Registrar and they contend that the balance of Rs. 122 should have been deducted from the mortgage money along with interest. On the one hand we have the statement of the mortgagor in the deed that he expected to receive a sum of money at the registration. On the other hand we have got the certificate of the Sub- Registrar that only Rs. 889 was paid before him. In the circumstances the Registrar's certificate should have, in, my opinion, prevailed as against the statement of the mortgagor in the deed, which does not amount to even an admission, which is usually rebut table.

(3.) As regards interest, the mortgagees claimed it at 1% per mensem up to the date on which the mortgagor could redeem a prior mortgage and obtain possession of the mortgaged property. Interest at that rate has been allowed by the Court below, and it is agreed by the learned Counsel for the appellants that this interest ought to be allowed. It follows therefore that if we deduct the sum of Rs. 122 we must deduct the interest also which comes to Rs. 20-12-0. I would therefore allow the appeal to the extent of Rs. 142-12-0. The amount payable to the mortgagees on redemption should be reduced by this sum.