BIBI KACHHIRANNESSA CHOWDHURANI Vs. HEM CHARAN KASYA

JUDGEMENT

(1.) THIS is an appeal against the decision of the learned District Judge of Dinajpur, dated the 24th June 1916, affirming the decision of the Munsif of the same place. The suit was brought to enforce a mortgage security. The mortgage was one that secured an advance of Rs. 49 with interest at the rate of three pice per rupee per month. There was a proviso in the mortgage bond for capitalizing the interest in arrear with annual rests. It may be admitted that the interest is heavy. The view that the learned Judges of the Courts below have taken is this: That the proviso for capitalizing the interest in arrear was obtained by undue influence. There are many reasons why such a point should not have been decided. First of all, the mortgagor or the representative of the mortgagor denied the mortgage. Secondly, no particulars of the alleged undue influence were stated as required by Order VI, Rule 4, Civil Procedure Code, and, if that had been pleaded and the particulars given, the plaintiff might have produced evidence showing that the parties were at arm s length and had separate and independent advice. Whether that is so or not, we do not know. It is quite clear that the Court, because it does, not like a proviso for capitalizing the interest when in arrear, cannot say that when such a proviso appears in the mortgage there is a presumption that undue influence was exercised. The present appeal must be allowed and the decrees of the Courts below varied by permitting the mortgagee to charge interest in accordance with the contract contained in the mortgage. A fresh period of six months is allowed for redemption. The appellant must -have his costs from the respondent both in this Court and in the Courts below.