SADAR-UD-DIN AHMAD Vs. CHAJJU

JUDGEMENT

(1.) The facts of this case are these. One Chajju executed a mortgage of certain property in favour of Husain Bakhsh and Nathu to secure a principal sum of Rs. 1,000, the mortgage being expressed to be made for a term of 25 years. In the mortgage there is a provision for redemption. The redemption clause provides that on payment of the amount due in the month of Jeth after the expiry of the term of 25 years the mortgage might be redeemed. The mortgagors refused to register the mortgage, and thereupon an application was made by the mortgagees for compulsory registration and compulsory registration was effected. Subsequently the mortgagees applied for mutation of names in the mutation department. To this, not merely Chajju, but another person named Abdulla objected. Abdulla, it will be noted, was no party to the mortgage. He claimed to be entitled to a share in the mortgaged property, and hence he objected to mutation of names so far at least as regarded his share. The dispute was compromised, the terms of the, compromise being that the whole of the property should be recorded as subject to the mortgage and that the names of the mortgagees should be entered as mortgagees in respect of it and the names of Chajju and Abdulla a mortgagors, It further provided that the mortgagors should have power in any Jeth to pay the mortgage debt and have the mortgage redeemed. The mortgagors sought redemption in pursuance of the terms of this compromise within the period of 25 years, and this was refused, and hence the suit for redemption out of which this appeal has arisen.

(2.) The defence to the suit was that it was premature having been brought within the term of 25 years.

(3.) The first Court gave a decree for redemption, but upon appeal the lower appellate Court reversed the decree of the Court of first instance on the ground that the terms of the compromise in the Revenue Court varied the terms of the mortgage and the agreement not having been registered was not admissible in evidence and could not be treated as giving the mortgagor a power to redeem contrary to the express provision of the mortgage deed. From that decision the present appeal has been preferred, and it was laid before a Bench of three Judges in view of the decision in the case of Nur Ali V/s. Imaman Weekly Notes 1884 p. 40 the correctness of which the Court before whom the appeal came was disposed to doubt.