B NARSINGH PRASAD SINGH Vs. RUPAN SINGH

JUDGEMENT

(1.) This is a defendant's appeal. The suit out of which this appeal arises was brought by Rupan Singh, respondent 1, for redemption of an usufructuary mortgage of 6 April 1895, for a sum of Rs. 325, executed by Bindesh Singh and others in favour of one of the appellants and his predecessor-in-interest. The mortgage-deed was a usufructuary mortgage, and a very small share of mauzas Kori, Gurdaspur, Jadupur, Posi, and Lalapur in pargana Kaswar Raja, district Benares, was mortgaged. The mortgage provided that it was to be in force for 20 years and that the mortgagor had the right to redeem that mortgage on 19th September 1914, and if redemption was not effected on that date it was not to be redeemed for another period of 20 years. The original mortgagors or their heirs, on 20 March 1914, executed a deed in favour of Rupan Singh and left a sum of Rs. 325 for payment of the mortgage, which is the subject of redemption in the present case. Rupan Singh has instituted the present suit for redemption on 17th March 1925 and in the plaint which he filed he stated that in October 1915 he deposited the money under Section 83, T.P. Act, but the mortgagee did not take the money. It appears that he withdrew the money in the year 1917. The defence of the appellant is that under the terms of the mortgage it was not redeemable for a term of 20 years after 14 September 1914.

(2.) The plaintiff never pleaded that any sum over and above Rs. 325 was ever claimed by the defendants at the time when they are alleged to have offered to redeem the mortgage. The Court of first instance held that the tender made by the plaintiff was not a legal tender and it also disbelieved the allegation of the plaintiff that he, as a matter of fact, ever tendered the mortgage money to the defendant as alleged. It appears that at the time of argument in the case it was argued by the learned vakil appearing for the plaintiff that, on the terms of the mortgage, the stipulation that the mortgage was not redeemable for a further term of 20 years was a clog on the equity of redemption, and therefore must be ignored. This plea found favour with both the Courts below and the plaintiff's suit for redemption was decreed.

(3.) The defendants have come up in appeal before us and it is argued by the learned advocate for the appellant that in each case when the Court wants to give relief to a mortgagor against the terms put in a mortgage-deed, there must be materials laid before the Court to come to the conclusion that the mortgagee was trying to overreach the mortgagor, or at any grate, the conditions were such that they made redemption almost impossible. It must be observed that in the present case, although the mortgage-deed when read might suggest that the conditions were such as to make it difficult for the mortgagor to calculate what was the amount of money he would have to deposit to redeem the mortgage, it is nobody's case that any sum beyond Rs. 325 was due on the mortgage on 19 September 1914 the date fixed for the mortgage. It appears to us clear that as far as the mortgagors themselves were concerned they did not consider the terms of the mortgage to be either harsh, or that it was impossible for them to have found out what was the correct mortgage money. In fact on 20 March 1913, over a year before the due date, they arranged with the present plaintiff that he should deposit the money when it fell due. There is not a word to be found to be on the record why the present plaintiff never deposited the sum of Rs. 325 on 19th September 1914.