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Mahamad Muse Vs. Bagas Amanji Umar - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai
Decided On
Case NumberSecond Appeal No. 844 of 1907
Judge
Reported in(1908)10BOMLR742
AppellantMahamad Muse
RespondentBagas Amanji Umar
DispositionAppeal dismissed
Excerpt:
construction of deed-mortgage-redemption before the expiry of the fixed period.; on the construction of the deed in the case, that the parties to it clearly intended that the relation between them should be that of mortgagor and mortgagee and that plaintiff: was entitled to redeem the mortgage even before the expiration of the fixed term.; tukaram v. ramchand (1901) i.l.r. 26 bom. 252 : 3 bom. l.r. 778, followed. - - moreover, reading the deed as a whole, we are of opinion that the parties clearly intended that the relation between them should be that of mortgagor and mortgagee......ex. 25, bears such close and intimate resemblance to the deed which was construed in the full bench decision of this court in tukaram v. ramchand i l r (1901) 26 bom. 252: 3 bom. l.r. 778, that in our opinion we are bound to follow that decision. no substantial difference that we can discover exists between the two documents. here, as there, the relation of debtor and creditor was established prior to the execution of the deed. here, as there, the creditor is to appropriate the income of the land towards the liquidation of the pre-existing debt; and when the creditor has managed the land for the prescribed period and appropriated the produce, the debtor will understand that his debt has been paid off, and that he is free to resume possession of the land. there is no mention ofany.....
Judgment:

Batchelor, J.

1. Although in general the decision of a Court upon one document is not conclusive as to the character of another document, yet the instrument with which we are here concerned, namely Ex. 25, bears such close and intimate resemblance to the deed which was construed in the Full Bench decision of this Court in Tukaram v. Ramchand I L R (1901) 26 Bom. 252: 3 Bom. L.R. 778, that in our opinion we are bound to follow that decision. No substantial difference that we can discover exists between the two documents. Here, as there, the relation of debtor and creditor was established prior to the execution of the deed. Here, as there, the creditor is to appropriate the income of the land towards the liquidation of the pre-existing debt; and when the creditor has managed the land for the prescribed period and appropriated the produce, the debtor will understand that his debt has been paid off, and that he is free to resume possession of the land. There is no mention ofany premium or periodical payment of rent or share of the produce. Moreover, reading the deed as a whole, we are of opinion that the parties clearly intended that the relation between them should be that of mortgagor and mortgagee. The deed is described as a 'Valatdan Patta,' and though the word ' Patta' is no doubt equivalent to the. English ' Lease', yet the word ' Valatdan ' is rendered ' a kind of mortgage' in Robertson's Glossary. The other considerations to which the Pull Bench called attention apply here as forcibly as they applied in that case, for this also is a suit under the Dekkhan Agriculturists' Relief Act.

2. Following, therefore, the decision of the Full Bench we come to the conclusion that this Ex. 25 is a mortgage deed. No other point has been taken and we, therefore, confirm the decree under appeal and dismiss this appeal with costs.


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