1. This is an appeal in a suit for redemption of a mortgage. The suit has been decreed by both the Courts below. The defendant appeals on the following grounds:
1. That the Court below should have come to a finding on the title of the plaintiffs.
2. That the suit is premature and that the mortgage was not redeemable until the Full Moon of Jeth in Sambat year 2039 corresponding to 1982 A.D.
3. That the suit is barred by Section 238(k) of the Land Revenue Act.
4. That the suit is barred by adverse possession.
5. Because the mortgage money should include revenue with interest thereon paid by the appellant.
2. No argument was addressed to us on the last point and we have therefore to consider the first; four grounds only.
3. Plea 1. - The learned Judge refused to go into the question of plaintiffs' title be-cause he said it had not been seriously contested in the trial Court or raised in the grounds of appeal to him. The plain-tiffs set out their title in para. 3 of their plaint. The defendant entered a forma! denial of this paragraph and in his further pleas set out in considerable detail an alleged oral sale by the original owner Parmeshwar Upadhia in his favour. There was nothing further in his written statement to indicate that the plaintiffs' title was challenged on any other ground. The learned Munsif framed an issue, 'Are the plaintiffs entitled to redeem : If so on payment of what amount?' In the earlier part of his judgment he gave reasons for rejecting the alleged oral sale. In dealing with this issue be merely set out the facts constituting the plaintiffs' title without any indication of any arguments which had been put forward challenging it, and then went on to discuss the amount on which redemption should be granted. In the grounds of appeal to the Court below the first ground, and the only one relied on as containing this objection, runs as follows:
It is fully proved from the entire evidence on the record that Parmeshwar Upadhia sold his interest in the mortgaged property in favour of the appellant and got the mutation of names effected accordingly and that the appellant is since then in the proprietary possession of the property. The plaintiffs are by no means entitled to sue for redemption.
4. Reading this ground as a whole it is clear that while it challenges the plaintiffs' title it does so on the ground that the title is done away with by the alleged previous sale to the defendant and on no other ground. We are of opinion, therefore, that the learned Judge was right in the conclusion at which he arrived on this issue. We may note that before us the appellant does not rely on the alleged oral sale.
5. Plea 2. - The learned Judge finds that the deed is ambiguous on the face of it. It is admittedly ungrammatical and can' not be read literally so as to give any clear meaning. In order to arrive at the construction they desire to place on it the appellant and the respondents alike have to supply or remove some works from the document as it stands. The appellant suggests that the words' Jeth Sudi Paranmasi Sambat 2039' have been written once where they should have been written twice and by repeating these words it is possible to read the document as meaning:
The mortgagee shall remain in possession and take the produce of both shares and spend it year by year in lieu of his interest from to-day up to the full moon of Jeth Sambat 2039. On that date if the executant, or my heirs pay the money from my own pocket shall get back the land and the document.
6. On the other hand by simply omitting the particle 'ko' it is capable of being read as meaning:
The aforesaid mortgagee shall take possession and expend the produce year by year in lieu of his interest. If from to-day up to the full moon of Sambat 2039, the executant, or my heirs pay the money, etc., shall get back the land and the document.
7. There is, therefore, a patent ambiguity in the deed and under Section 93 of the Evidence Act no evidece is admissible to supply the defect. The learned Judge was right in holding that under these circumstances the mortgage money must be taken to be repayable at any time. We may add that even if we were prepared to place on the deed the construction for which the appellant contends we should hold that the conditions of the deed amounted to a clog on the equity of redemption and were unenforceable. not only is the mortgage, on this view, for a period of 82 years, but even at the end of that time only one day was allowed for redemption; and unless the money was paid on that particular day the mortgage was to become a sale and the mortgagor was to lose his title altogether. There is a further covenant that the mortgagor is to pay the money from his own pocket and that he is not at liberty to redeem the mortgage with borrowed money. The case is very similar to Sarbadwan Singh v. Bijai Singh (1914) 36 All. 551, in which similar conditions were treated as a clog on the equity of redemption and as not being enforceable.
8. Plea 3. - The plea based on Section 233(k) of the Land Revenue Act is fully dealt with by the learned Muusif whose views are adopted by the learned Judge and are sufficient to dispose of this plea. The plea is based on the fact that in the partition record the mortgagee is shown as proprietor of a share equal to the share in dispute. As the learned Munsif has shown this share was interpolated in the khewat in addition to the original shares, which made up the total area. The mortgagor retained his original share unimpaired and his name continued to be recorded in respect of it. Section 233(k) cannot possibly apply to circumstances like these.
9. Plea 4 - The plea of adverse possession loses all force in face of the appellant's admission that he cannot rely on the oral sale in his favour. He has nothing in support of it except the mutation entry. A mere mutation entry of the mortgagee as proprietor clearly cannot convert his possession as mortgagee into adverse possessionsion.
10. For these reasons the appeal fails and we dismiss it with costs including in this Court fees on the higher scale.