SHIAM LAL Vs. JAGDAMBA PRASAD

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit for redemption of a mortgage, dated the 4 February 1922, executed by Udai Singh, in favour of the defendant-respondents, Jagdamba Prasad and Debi Charan, for a sum of Rs. 1,500. The plaintiff purchased the equity of redemption on 8 July 1922 and deposited the mortgage money in Court, on 16 November 1923, under the provisions of Section 83, T.P. Act, and as the mortgagees did not withdraw the money and consent to the redemption of the mortgage, the plaintiff-appellant filed the suit giving rise to the present appeal. The defence to the suit was that the usufructuary mortgage sought to be redeemed by the plaintiff was for a term of 15 years certain, and the suit having been filed before the expiry of that term was premature. The trial Court held that though the mortgage was for a term of 15 years, the mortgagor was given a right to redeem the mortgage before the expiry of that period, provided he paid the mortgage money from his own pocket and not by raising the same by a mortgage or sale of the mortgaged property. It further held that the condition embodied in the mortgage-deed that the mortgagor would be entitled to redeem before the expiry of 15 years only on condition of paying the mortgage money from his own pocket constituted a fetter on the equity of redemption and, therefore, the plaintiff-appellant, notwithstanding the fact that the suit was filed before the expiry of 15 years was entitled to a decree. On appeal by the defendants the lower appellate Court held that the condition referred to above was a grace and a concession given to the mortgagor by the mortgagees and could only be exercised by the mortgagor himself and did not constitute a clog on the equity of redemption. In that view of the case the lower appellate Court reversed the decree of the trial Court and dismissed the plaintiff's suit.

(2.) It is argued on behalf of the plaintiff-appellant that the restriction put on the right of the mortgagor to redeem the mortgage before the expiry of the stipulated period by allowing him to do so only on condition of paying the mortgage money from his own pocket and not by raising the same by a mortgage or sale of the mortgaged property is a clog on the right of redemption and is bad in law. In the view that I take of the true interpretation of the mortgage-deed this question does not arise. In my opinion the mortgage was for a term of 15 years certain and no option was given to the mortgagor to redeem the mortgage before the expiry of 15 years. The document, after reciting that the mortgagor had usufructuarily mortgaged the property for a term of 15 years, viz., from kharif 1330 to the end of 1314 fasli, in favour of the mortgagees, proceeds as follows: And it is agreed that neither the mortgagor will be entitled to the usufruct of the mortgaged property nor the mortgagees will be entitled to interest on the mortgage money... and, after paying the mortgage money from my own house, I would redeem the mortgaged property within the period fixed. If I pay after mortgaging or selling the property to some other person, then the mortgagees will be entitled not to accept the money and not to quit possession. In case of default and non- payment of the principal money the mortgagees will be entitled to obtain proprietary possession over the mortgaged property by suit and then this very mortgage-deed will be deemed to be a sale-deed and the mortgage money to be sale consideration... and the mortgagees are authorized to bring suits for arrears and enhancement of cent... till the period fixed by this mortgage. Therefore, I have executed this usufructuary mortgage-deed containing terms of a conditional sale for a period of fifteen years.

(3.) It is well settled that in the absence of any agreement, expressed or implied to the contrary the right to redeem and the right to foreclose must be regarded as co-extensive: vide Vadju V/s. Vadju [1880] 5 Bom. 22. In the present case there can be no doubt that the mortgage was made for a period of 15 years, certain. The only question is: Does the document evidence any contract by which the mortgagor, notwithstanding the fact that the mortgage was for a period of 15 years, was given the right to redeem the mortgage before the expiry of that period? Reliance is placed by the learned Counsel for the appellant on the following sentences in the mortgage-deed in support of his contention that the mortgagor was given such a right: Aur mublighan zar-i-rahin apne ghar se ada kar ke haqiyat marhuna andar miyad faki-i-rahin kara lunga. Agar kahin rahin wa bai karke ada karun to murtahin rupiya na lewen aur qabza na chhoren.