FAQIR PASI Vs. BEHARI KUNDIGAR

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-appellants for redemption of a certain mortgage of a house. The mortgage set out that the mortgagee was to do all the repairs of the house in question and moreover to rebuild certain dilapidated portions. In addition to enjoyment of the house he was to get Rs. 24 per cent interest per year. The mortgage was also not redeemable for a period of 20 years.

(2.) The trial Court came to a finding that the present value of the house is about Rs. 1,000, and that according to the terms of the mortgage-deed the mortgage debt must have amounted at the date, when the mortgage became redeemable, to a sum of Rs. 2,120. It consequently held that the provision as to interest at this high rate amounted in effect to a denial of all rights to redeem, and allowed redemption upon repayment of the principal amount only, namely Rs. 200.

(3.) In appeal the Subordinate Judge held that the repairs and rebuilding of the house must have swallowed up all the pecuniary advantage to be enjoyed by the mortgagee from enjoyment of the house, that a high rate of interest could not be deemed a clog on the equity of redemption and that the mortgager must have agreed to this interest and was not proved to have been subjected to undue influence or pressure. He, therefore, allowed redemption only on payment of the entire interest at the full contractual rate.