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Nilawa Bharma Bashya Vs. Krishnappa Huwappa Maistri - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Judge
Reported in(1906)8BOMLR350
AppellantNilawa Bharma Bashya
RespondentKrishnappa Huwappa Maistri
Excerpt:
mortgage-redemption-payment of assessment by mortgagee-the amount so paid can be added to mortgage money.;apart from special stipulation a mortgagee is under no liability to pay assessment as between himself and his mortgagor ; and if he does pay it for the purpose of preserving his security, then he is ordinarily entitled to add that amount to his mortgage money, and to require that ho should be paid it before he can be redeemed.; where the mortgagee agrees to pay a certain sum as assessment, and the assessment is subsequently increased, he is entitled to add the amount of the excess payments so made to his mortgage security. - .....but he claims to add to his mortgage money the assessment in excess of those amounts. this excess payment has been made in consequence of an enhancement of assessment since the date of the mortgage.5. the only question we have to determine is whether on the true construction of this document he became liable for the enhanced assessment as between himself and the mortgagor.6. in our opinion he did not.7. he undertook to pay the government assessment of a particular amount and nothing beyond that. 8. he has had to pay the government assessment in excess of that amount by reason of its enhancement and to prevent forfeiture.9. under the circumstances it is clear that he is entitled to add the amount of the excess payments to his mortgage security. 10. we are therefore of opinion that.....
Judgment:

Lawrence Jenkins, K.C.I.E., C.J.

1. The question that arises on this appeal is whether the mortgagee is entitled to add to the mortgage money the amount paid by him by way of assessment.

2. Now it is clear that apart from special stipulation a mortgagee is under no liability to pay assessment as between himself and his mortgagor; and if he does pay it for the purpose of preserving his security, then he is ordinarily entitled to add that amount to his mortgage money, and to require that he should be paid it before he can be redeemed.

3. Here however we have a specific provision in the mortgage deed which casts on the mortgagee a certain liability with respect to assessment. It is there stipulated that the mortgagee should pay directly to the Government every year the Government dues for assessment that is Rs. 43-5-4, and Local Fund Rs. 2-11-4, in all Rs. 46-0-8.

4. The mortgagee does not seek to charge the mortgagor with the payment that he has made of assessment and local fund within the limits thus specified, but he claims to add to his mortgage money the assessment in excess of those amounts. This excess payment has been made in consequence of an enhancement of assessment since the date of the mortgage.

5. The only question we have to determine is whether on the true construction of this document he became liable for the enhanced assessment as between himself and the mortgagor.

6. In our opinion he did not.

7. He undertook to pay the Government assessment of a particular amount and nothing beyond that.

8. He has had to pay the Government assessment in excess of that amount by reason of its enhancement and to prevent forfeiture.

9. Under the circumstances it is clear that he is entitled to add the amount of the excess payments to his mortgage security.

10. We are therefore of opinion that the District Judge rightly determined that the mortgagor must pay the Rs. 965-13-0 in addition to the Rs. 300. But we think he was in error in holding that interest at 6 per cent for 27 years should also be paid on that Rs. 965-13-0 as no such claim was made in the written statement.

11. The result is that we vary the decree by directing redemption upon payment of the Rs. 300 and Rs. 965-13-0 with interest at 6 per cent from the date of this decree until payment which is to be made within six months from this date.

12. The appellant must pay the costs of this appeal.


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