SRI RAJAH SATRUCHERLA Vs. MAHARAJA OF JEYPORE

JUDGEMENT

(1.) On the 4th January, 1906, the appellants, who are zemindars, borrowed from the respondent, the Maharajah of Jaipur, five lacs of rupees, and in security thereof mortgaged certain lands. The mortgage is in ordinary form providing for payment of interest and compound interest, but contains the following special clause :- These properties are mortgaged and retained in our possession. But in case at any time any amount remains due out of the amount of interest payable on the due dates of any two years consecutively, or in case, within seven years from this date, the entire amount of principal and interest then remaining due be not paid, though the interest is paid according to instalments, we shall raise no sort of objections to your entering on and taking possession of the above-mentioned mortgaged properties, irrespective of the said mortgage term.

(2.) The terra of payment was, therefore, on the 4th January, 1913. By the 4th January, 1911, the borrowers were two years in arrear in payment of interest, and were in need of further monies. Accordingly, a second mortgage was granted in July, 1911, for the said two years of interest and compound interest and further monies, amounting in all to Rs. 120,000. The deed, after reciting the various sums, which amount to the Rs. 120,000, continues as follows :- We shall pay the above principal sum of Rs. 1,20,000 and the interest accruing according to the terms of the deed, in full, on the 4th January, 1916. Further, though the 4th January, 1913, is the due date for the mortgage deed or Rs. 5,00,000.0.0 executed on the 4th January, 1906, in your favour by Nos. 1, 2, 3, 4, 5 and 7 among us and by late Sri Somasekhararaju Bahadur Garu and registered as No. 22 of 1906 in the Sub-Registrar s office at Parvatipur, you and we have settled now that the due date for the said deed should also be the 4th January, 1916, along with this deed. Therefore, by this change, the entire terms of the registered deed, dated the 4th January, 1306, are deemed to have been included in this deed, and we shall agree to the said terms even regarding the discharge of the principal and interest of this deed also and be bound by them. If, according to the terms of this deed, the interest of each year be not paid on the respective due date, these terms will not prevent you from recovering the said amount then and there, if you should so desire, without waiting for the due date, namely the 4th January, 1916.

(3.) The appellants paid no interest whatever after the date of the second deed, and accordingly, in July. 1913, there being two years interest in arrear, the respondent brought the present suit for decree for the whole sum due and for an order of sale of the mortgaged properties. To this action the appellants plead in defence, first, that the mortgage was a usufruct mortgage and did not authorise sale ; and secondly, that the action was premature, the term of the 4th January, 1916, not having yet arrived. The learned Subordinate Judge held that the mortgages were simple mortgages, with merely an alternative power of entry into possession, and granted decree and order for sale in ordinary form.