Skip to content


Sheo Parshan Ram and ors. Vs. Rikhi Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All316
AppellantSheo Parshan Ram and ors.
RespondentRikhi Ram and anr.
Excerpt:
mortgage - construction of document--meaning of the term 'sudi'--interest post diem--post diem interest decreed as damages not a charge on the mortgaged property. - - they expressly provided that all payments of principal or interest during the mortgage term should be endorsed upon the mortgage bond and that payments not so endorsed should not be allowed if claimed......of damages.2. the first court held that there was no contract, express or implied, to pay interest post diem. the lower appellate court, relying on the use of the adjective 'sudi' in the mortgage bond, held that the intention of the parties was that the principal should bear interest until payment, and gave the plaintiffs a decree under section 88 of the act for the principal, interest up to due date and interest post diem. the same district judge had given a similar decision in the case of ram kuar and anr. v. sheoratan singh and ors. which came up to this court in second appeal (s.a. no. 67 of 1892). in that case this court, having before it the views of the district judge as to the effect in a mortgage contract of the use of the adjective 'sudi,' held that there was absolutely no.....
Judgment:

John Edge, Kt., C.J. and Blennerhassett, J.

1. The suit out of which this appeal has arisen was one for sale under Section 88 of the Transfer of Property Act. The plaintiffs claimed principal and a large amount for interest. They did not show in their plaint how the amount which they claimed for interest became or was mortgage money within the meaning of Clause (a) of Section 58 of the Transfer of Property Act. They merely said that they were entitled to recover 'Rs. 4,106-11-6 principal and interest detailed as below.' That was not a properly drawn paragraph. When we look at the detail referred to in the plaint we find that they claimed up to the due date of the mortgage, which was seven years from the 20th of October 1879, the principal and interest contracted to be paid by the mortgagor, and after due date they claimed interest at a different rate on, the sum of the principal moneys and of the contractual interest. It is evident that what they ware claiming after the due date of the mortgage was not interest secured by the mortgage, or which they thought was secured by the mortgage, but interest in the shape of damages.

2. The first Court held that there was no contract, express or implied, to pay interest post diem. The Lower Appellate Court, relying on the use of the adjective 'sudi' in the mortgage bond, held that the intention of the parties was that the principal should bear interest until payment, and gave the plaintiffs a decree under Section 88 of the Act for the principal, interest up to due date and interest post diem. The same District Judge had given a similar decision in the case of Ram Kuar and Anr. v. Sheoratan Singh and Ors. which came up to this Court in second appeal (S.A. No. 67 of 1892). In that case this Court, having before it the views of the District Judge as to the effect in a mortgage contract of the use of the adjective 'sudi,' held that there was absolutely no express provision in the contract for post diem interest and that there were no sufficient materials for the Court finding by implication that the parties intended to contract for post diem interest. That is a decision bearing on the meaning of the term 'sudi' in a contract of mortgage. In our opinion the District Judge misinterpreted the mortgage deed. All moneys lent upon mortgage are lent either bearing interest or not hearing interest. Those cases in which no interest at all is stipulated for must be of the rarest possible occurrence. 'Sudi' as used in this mortgage deed merely meant that until due date the principal money should bear interest. Beyond that, it is obvious that the parties did not contemplate post diem interest. They expressly provided that all payments of principal or interest during the mortgage term should be endorsed upon the mortgage bond and that payments not so endorsed should not be allowed if claimed. They made no provision for any payment of principal or interest post diem. We may conclude that the intention was that 1ihe debt and contractual interest should be paid within the seven years provided for in the bond. The defendants who have brought this second appeal are assignees of 1892 of the mortgagor's rights. The mortgagor who was a party to the suit has not appealed. As against him it would have been proper to have given a decree for damages for non-payment of the mortgage money on the due date, but a decree for damages, as pointed out in the judgment of the Pull Bench of this Court in Narindra Bahadur Pal v. Khadim Husain I.L.R. 17 All. 581, cannot constitute under the Transfer of Property Act a charge on the estate, i.e., the mortgaged property could not be sold under Section 88 (or rather Section 89) in respect of damages which might be decreed for breach of contract to pay, although, if the mortgaged property is in the possession of the mortgagor, no doubt the decree for damages, which would be a decree for money, might be executed, if the Court thought fit so to grant execution of it, against the hypothecated property; but that would be a proceeding under the Code of Civil Procedure and not under the Transfer of Property Act. In that respect there may be a difference between the practice followed in the Courts in England and the law as it has to be administered in India under the Transfer of Property Act.

3. We allow this appeal, and we vary the decree of the Court below as against these appellants and the property hypothecated by limiting the amount for which the property may be sold to the amount due for principal and interest up to the 20th of October 1886, and the costs. The appeal is allowed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //