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Mahomed Muse and ors. Vs. Jijibhai Bhagvan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom520
AppellantMahomed Muse and ors.
RespondentJijibhai Bhagvan and ors.
Excerpt:
evidence - bond--suit the execution of which is admitted--consideration--burden of proof--dekkhan agriculturists' relief act (xvii of 1879), sections 12 and 15--practice--procedure. - .....c.j.1. the objection to the condition in the mortgage, that if the mortgage redeemed the land, the mortgage right only should be extinguished, and the lands should remain in the hands of the mortgagee, he paying a rent of two rupees per tigha has not been dealt with by the assistant judge, although it was raised by the fourth ground of the plaintiff's appeal. such a condition, although it does not exclude the right of redemption, fetters it with the onerous obligation of accepting the mortgagee as a perpetual tenant, and ought not, therefore, in our opinion, to be enforced in a court of equity.2. we must, therefore, reverse the decree, and order that the plaintiffs be entitled to redeem within six months from the date of this decree on payment of the sum of rs. 1,999, or to stand forever.....
Judgment:

Charles Sargent, C.J.

1. The objection to the condition in the mortgage, that if the mortgage redeemed the land, the mortgage right only should be extinguished, and the lands should remain in the hands of the mortgagee, he paying a rent of two rupees per tigha has not been dealt with by the Assistant Judge, although it was raised by the fourth ground of the plaintiff's appeal. Such a condition, although it does not exclude the right of redemption, fetters it with the onerous obligation of accepting the mortgagee as a perpetual tenant, and ought not, therefore, in our opinion, to be enforced in a Court of Equity.

2. We must, therefore, reverse the decree, and order that the plaintiffs be entitled to redeem within six months from the date of this decree on payment of the sum of Rs. 1,999, or to stand forever foreclosed. Parties to pay their own costs throughout.


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