VISHVENDRA THIRTHASWAMI Vs. VISHNUMURTI BHATTA

JUDGEMENT

(1.) Assuming that the documents, Exhibits C, E, F and G, are admissible in evidence for the purpose of proving the mortgage sued on and the provisions thereof, as to which we express no opinion, we are not prepared to say they negative the evidence afforded by Exhibit B (the judgment of the appellate Court in a suit in 1839 on the mortgage in question) which is admissible under Secs.74 and 90 of the Evidence Act, and which shows, as the Munsif finds, that the mortgage deed provided that the plaintiff might redeem at the end of any year within 15 years. The only evidence in this case consists of the statements in exhibits A and B of the predecessor in title of the plaintiff and the statement in Exhibit E of the predecessor in title of the defendant, and we cannot accept the statement in Exhibit E, of the defendant's predecessor in title as against the plaintiff's own statement in Exhibit B. In view of the special provisions in the mortgage deed it is not necessary for us to consider the question of construction (with regard to which conflicting views have been taken) which arose in Vadju v. Vadju (1880) I.L.R. 5 B. 22 and Raghubar Dayal V/s. Bhikya Lal (1885) I.L.R. 12 C. 69 on the one side and in Chinnasawmy Reddiar V/s. Krishna Reddi and Rose Ammal V/s. Rajaratnam Ammal (1898) I.L.R. 23 M. 33 on the other.

(2.) Having regard to the terms of the instrument in question, the plaintiff has failed to show that his right to redeem only arose within 60 years of the date of the institution of his suit.

(3.) We must set aside the decrees of the Courts below and dismiss the suit.