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Bageshari Tewari Vs. Nandoo Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1937All32; 166Ind.Cas.473
AppellantBageshari Tewari
RespondentNandoo Singh and ors.
Excerpt:
.....mortgagor himself was that the mortgage-debt had become satisfied in 1838 and the right to recover possession, therefore, accrued then. 9. this case therefore undoubtedly helps the respondent, and on the authority of this case the right to redeem to the pre-sent mortgagor arose on 1st jeth after kuar 1869 which would correspond to something like may or june 1870. in vishvendra thirthaswami v......when the mortgage deed provided that the mortgagor might redeem at the end of any year within 15 years a suit for redemption brought more than 60 years after the expiry of one year from the date of the mortgage was barred by time. reliance was also placed on the case in rose ammal v. rajarathnam ammal (1900) 23 mad. 33. the facts were that certain premises were mortgaged with possession in 1896. the mortgagor in the instrument of the mortgage covenanted to repay the mortgage money within 20th april 1904. in 1898 the mortgagor sold the mortgaged premises and called upon the mortgagee to receive the principal and interest due and to deliver up possession. the mortgagee refused on the ground that the mortgage was not redeemable till 1904. the plaintiff mortgagor therefore brought a suit.....
Judgment:

Bajpai, J.

1. This is a plaintiff's appeal in a suit for redemption of a mortgage. The suit has been dismissed by the Courts below on the ground that it is barred by limitation. It is necessary at this stage to state the relevant portions of the mortgage deed. It was executed on Kuar Badi 15, Sambat 1926, corresponding to 5th October 1869; the mortgage money was Rs. 12. The property covered by the mortgage comprised an area of 1 bigha kham. The mortgagee was put in possession of the mortgaged property and given the right to cultivate the field himself or get it cultivated by others. He was to pay Rs. 1-9-0 on account of the rent of the field and was given the right to appropriate the profits in lieu of interest. It then provided that when the mortgagor repaid the sum of Rs. 12 in the month of any Jeth within ten years the field would be redeemed. The words in the vernacular are:

Jab Jethi Jethi andar das baras ke rupiya barah de den tab khet chhora len.

2. If the field was not redeemed within ten years the mortgagor will have no concern with the field and the jama thereof and the creditor will become the owner of the field. The contention of the mortgagee was that the right to redeem and to recover possession of the mortgaged property accrued on 1st Jeth following the Kuar of 1926, that is to say, some time in June 1870, and therefore the plaintiff's suit instituted more than 60 years after June 1870 was barred by Article 148, Lim. Act. The Courts below have given effect to this contention and dismissed the plaintiff's suit instituted on 8th December 1930 as barred by time. In second appeal it is contended before me that the suit is not barred by time, inasmuch as the right to redeem accrued after the expiry of ten years from 5th October 1869, the date of the mortgage. Reliance is placed by the learned advocate for the appellant on the case in Vadju v. Vadju (1880) 5 Bom 22, where following two earlier cases of the same Court and a dictum of Lord Kingsdown in Prannath Roy Chowdry v. Rookea Begum (1857) 7 M.I.A. 323, at p. 355 to the effect that

Where a mortgage is subject by law to be foreclosed the title to foreclose is in the nature of a limit to the title to redeem.

3. Westropp, C.J., held that the general principle as to redemption and foreclosure is that in the absence of any stipulation, express or implied, to the contrary, the right to redeem and the right to foreclose must be regarded as co-extensive. The submission is that the mortgagee was not entitled to foreclose before the expiry of ten years and as such, the mortgagor is also not entitled to redeem before the expiry of ten years. The contention of the learned Advocate for the respondent is that the principle 'the right to redeem and the right to foreclose must be regarded as co-extensive' is subject to any stipulation, express or implied, to the contrary and that this exception was made quite clear by their Lordships of the Privy Council in Bakhtawar Begam v. Husaini Khanum A.I.R. 1914 P.C. 36, at p. 199, where it was observed that there was nothing in law to prevent the parties from making a provision that the mortgagor may discharge the debt within the specified period and take back the property. If the matter, therefore, rested only on authorities mentioned by me so far, the question that one has got to see in a matter like this is as to whether there is any covenant in the mortgage-deed by which the parties made a provision entitling the mortgagor to discharge the debt within the period of ten years. It is noteworthy that in the present case there is no condition in the mortgage-deed to the effect that the mortgage was for a period of ten years certain. That condition has got to be deduced from the provision which gives the mortgagor the right to redeem, and that right is given in the sentence that when the mortgagor repays the sum of Rs. 12 in the month of any Jeth within ten years (Jab Jethi Jethi andar das baras) the mortgagor will get the field redeemed. This is giving clearly a right to the mortgagor to redeem at any time within ten years. It is true that the right of foreclosure can under the circumstances of this case arise only after the expiry of ten years, because till that time if the mortgagor does not choose to redeem, the relationship of a mortgagor and mortgagee subsists between the parties, but the mortgagor has, according to my reading of the document, the right to redeem at any; time within ten years.

4. The mortgage after all was in a sum of Rs. 12 and the mortgagee cannot with any show of reason say that he invested a fairly large amount of money in the hope that his possession over certain properties would not be disturbed for some appreciable length of time. He gave to the mortgagor the option to redeem in the month of any Jeth and he can have no grievance, in the absence of any condition fixing the term of mortgage at ten years certain, if he is ousted on tender of the mortgage money at a very much earlier date. If therefore the mortgagor had brought his suit at any time within ten years on 5th October 1869, it could not be said that his suit was premature. He cannot therefore say that a suit instituted more than sixty years after the first Jeth succeeding the 5th October 1869 should not be held to be barred by time. I now propose to consider the various authorities that have been cited before me at the bar. Apart from the case reported in Vadju v. Vadju (1880) 5 Bom 22, learned Counsel for the plaintiff has relied upon the case in Husaini Khanam v. Collector of Cawnpore (1907) 29 All. 471, where it was held that under ordinary circumstances a mortgagor cannot, before the time limited for payment to the mortgagee expires, take proceedings to redeem a mortgage. In this case the mortgage came into existence under the documents: one was a document of absolute sale and the other was a document containing a covenant to recovery. The Court below after a consideration of the terms contained in the two documents came to the conclusion that the mortgage was no doubt for a term of nine years. This Court also agreed with this finding and came to the conclusion that the suit for redemption was not barred by time. On appeal their Lordships of the Privy Council in Bakhtawar Begam v. Husaini Khanum A.I.R. 1914 P.C. 36, made it clear that it was permissible for the parties to have a special condition entitling the mortgagor to redeem during the term for which the mortgage was created. They observed that the expression that 'the sale would be cancelled on payment of the consideration in nine years' was certainly ambiguous. On a consideration, however, of certain earlier proceedings instituted by the plaintiffs of the case it was quite clear that the case of the mortgagor himself was that the mortgage-debt had become satisfied in 1838 and the right to recover possession, therefore, accrued then. The suit having been instituted on 6th January 1899, more than sixty years after 1838, was held to be barred by time. This case, therefore, is no authority for the proposition that in the present case the mortgagor's suit should be held to be within time.

5. The next case on which reliance is placed is the case in Kalka Prasad v. Bhuiyan Din (1909) 31 All. 300. The learned Judges observed that the Court below had relied on the case in Husaini Khanam v. Collector of Cawnpore (1907) 29 All. 471, but in the view which they took of the case its was not necessary to enter into a consideration of the various authorities which had been cited. They then went on to say:

We think that in each case we must look to the nature of the particular mortgage and the surrounding circumstances to ascertain what the intention of the parties was.

6. The nature of the mortgage and the surrounding circumstances were then considered and they came to the conclusion that from the mere fact that at one place it was said in the document executed by the mortgagee that the mortgagor should pay the money within seven years the right to redeem did not accrue until the expiry of the seven years, more particularly when the document further on spoke of payment being made according to the period mentioned in, it. I am, therefore, of the opinion that the decision in that case must obviously be confined to the circumstances of that particular case. My attention was then drawn to the case in Shiam Lal v. Jagdamuba Prasad : AIR1928All131 . This was a suit for the redemption of a mortgage dated 4th February 1922, and the suit was instituted some time in 1924 or 1925, in any event much before the expiry of fifteen years, the term entered in the mortgage-bond. Iqbal Ahmad, J., after quoting various passages from the mortgage-deed, came to the conclusion that the mortgagor was not given the right to redeem before the expiry of the stipulated period of fifteen years and that the mortgage sought to be redeemed was for a period of fifteen years certain. Sen, J. was of the opinion that certain, conditions incorporated in the mortgage deed had not been complied with by the mortgagor and therefore the mortgagor was not entitled to redeem. This case also therefore does not help the plaintiff-appellant, because the decision was based upon the particular terms of the mortgage deed under consideration.

7. The learned advocate for the respondent-has drawn my attention to certain cases which favour his contention. In Hafiz Amir Muhammad v. Wazir A.I.R. 1917 All. 318. Tudball and Rafique, JJ., on a consideration of the terms of the mortgage deed before them, came to the conclusion that a suit instituted in 1914 for the redemption, of a mortgage dated 8th December 1909 was not premature and the finding of the Court below that the mortgage was not redeemable till the expiry of a period of ten years was not correct. The relevant clauses there may be reproduced. They were:

If within a period of ten years we have paid the whole of the mortgage money in one lump sum, the mortgaged property specified below will be redeemed. If according to our promise we do not pay the whole of the mortgage money, the property will be sold outright and the aforesaid creditor, by means of the present deed, will be considered as in proprietary possession of the mortgaged property, and that for the period of the mortgage the mortgagee would have no claim for interest nor the mortgagor for profits.

8. The terms of the mortgage deed there bear close' resemblance to the terms of the mortgage deed before me and their Lordships observed:

To us the meaning of the contract is plain. Under Clause 2 the mortgagor was to redeem within a period of ten years and if the mortgage was not redeemed within that period, then the mortgagee on the expiry of that period was to become the owner of the property. To hold that the mortgagor cannot redeem within the period of ten years in the above circumstances would be to hold that he could never redeem at all, for in the understanding of the parties on the expiry of that period, the property was to become the property of the mortgagee and the mortgage was to be no longer redeemable.

9. This case therefore undoubtedly helps the respondent, and on the authority of this case the right to redeem to the pre-sent mortgagor arose on 1st Jeth after Kuar 1869 which would correspond to something like May or June 1870. In Vishvendra Thirthaswami v. Vishnumurthi bhatta (1908) 18 M.L.J. 235 it was held that when the mortgage deed provided that the mortgagor might redeem at the end of any year within 15 years a suit for redemption brought more than 60 years after the expiry of one year from the date of the mortgage was barred by time. Reliance was also placed on the case in Rose Ammal v. Rajarathnam Ammal (1900) 23 Mad. 33. The facts were that certain premises were mortgaged with possession in 1896. The mortgagor in the instrument of the mortgage covenanted to repay the mortgage money within 20th April 1904. In 1898 the mortgagor sold the mortgaged premises and called upon the mortgagee to receive the principal and interest due and to deliver up possession. The mortgagee refused on the ground that the mortgage was not redeemable till 1904. The plaintiff mortgagor therefore brought a suit in. 1898 for redemption, and it was held that the mortgagor was entitled to redeem and that a stipulation for the postponement of the payment of the mortgage money was prima facie intended for the benefit of the mortgagor and the mortgagee was not entitled to insist that redemption should take place only after 1904. This case was followed in Purna Chandra Sarma v. Peary Mohan Lal (1912) 39 Cal. 828. In this case there was no time fixed for repayment of the mortgage money in the deed as drawn up, but after the deed had been executed a clause was added to the effect that the money was to be paid, principal and interest, within one year. The mortgage deed was executed on 19th July 1907 and four days after, that is on 24th July 1907, the principal amount covered by the bond plus Rs. 2 as interest up to date was tendered in discharge of the mortgage debt. The mortgagee refused to accept the same and the amount was deposited in Court to the credit of the mortgagee. The mortgagee then brought a suit several years after, presumably in 1909, for the recovery of the mortgage money together with interest up-to-date. The trial Court held that the mortgage had been redeemed by the tender of the principal and interest on 24th July 1907, and although the lower appellate Court took a contrary view, the Calcutta High Court on second appeal agreed with the view taken by the trial Court and held that in each particular instance it mush be determined upon the terms of the contract between the parties whether there was any special provision in the contract which took the case out of the general rule that the right of foreclosure and the right of redemption must be deemed co-extensive, and in the case before them there was a covenant in the mortgage deed that the mortgagor shall pay the amount of principal and interest within the term of one year.

10. I have discussed all the cases that were, cited before me and I am of the opinion that the force of authority is against the contention of the plaintiff appellant and my own view is also that the plaintiff's right to redeem and obtain possession accrued some time in June 1870 and the plaintiff's suit is barred by time as having been brought more than 60 years after that date. I therefore dismiss this appeal with costs. Leave to file an appeal by way of Letters Patent is granted.


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