HARDAYAL LAL Vs. GANGA KOERI

JUDGEMENT

(1.) In this appeal we are of opinion that the decision of the Munsif and of the Additional Subordinate Judge must be set aside. The very short history of the case is that Niranjan and Sheo Datt were occupancy tenants and in 1876 mortgaged a field for Rs. 156 to Jawahar Lal. Niranjan and Sheo Datt are today represented by defendants 7 to 14. Jawahar Lal is represented by defendants 1 to 6. The plaintiffs are heirs of the mortgagors and sue for redemption. They claim to be entitled to redeem on payment of Rs. 156 that being the amount of money lent on this usufructuary mortgage of the occupancy land. The defendants set up three other loans, of a sum of Rs. 360 advanced on the 6 August 1883, a sum of Rs. 49-15- 0 advanced on the 30 October 1890, and a sum of Rs. 47 also advanced on the same date, together with interest, and they claimed that by virtue of the terms upon which these loans were made the property could not be redeemed unless and until the Rs. 156 and the three sums together with the greed interest were tendered simultaneously. In each of the documents the borrowers agreed as follows: When on any Jeth Sudi Puranmashi I or we pay the amount of this bond, then I or we can redeem the land mortgaged and take the land and the document back.

(2.) The learned Munsif and the Subordinate Judge came to the conclusion that these three documents could be, and ought to be, dissevered from the original usufructuary mortgage. The Subordinate Judge took them to be of the nature of simple mortgages. He having come to that conclusion quite rightly and properly held that a simple mortgage of an occupancy tenancy being void redemption was to be allowed upon payment of the original amount of Rs. 156 plus a small amount of interest. Our attention has been drawn to the case of Har Prasad V/s. Ram Chandra A.I.R. 1922 All. 174. The three documents which are in question in this case are of a kind known as "mashrut-ul rahn", and it was document of a similar character which had to be construed in the case just mentioned. In fact an examination of the stipulation in the document in the case of Har Prasad V/s. Ram Chandra A.I.R. 1922 All. 174 shows that it approaches as nearly as possible to the shorter form of words used in the three documents in the present case. The stipulation in Har Prasad V/s. Ram Chandra (1) was, When I shall redeem the land mortgaged I shall also pay the said amount, with interest at the stipulated rate, and then the mortgaged property shall be redeemed; without payment of the said sum the property shall not be redeemed

(3.) At the conclusion of the deed it was described as being by way of "mashrut-ul- rahn". We have to ask ourselves whether there is any distinction that can be drawn between these two cases. Sir Pramada Charan Banerji went into the authorities exhaustively, and he came to the conclusion that the effect of the clause which we have just read was to create a further mortgage upon the share of one of the mortgagors who alone had borrowed the second sum of money. The important decision is of course that it created a further mortgage. Mr. Justice Banerji says at p. 41 [of 44 All]-: In my opinion a document of this description should be deemed to be a document which creates a further encumbrance on the property and adds to the amount of the original usufructuary mortgage, and is a mortgage for the amount secured by it.