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Raghubar Dayal and anr. Vs. Budhu Lal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All95
AppellantRaghubar Dayal and anr.
RespondentBudhu Lal
Excerpt:
mortgage - redemption--suit to redeem brought before expiration of term of mortgage. - .....in other words, after what date would the mortgagee be able to enforce his rights under the mortgage-deed3. i have no doubt that the lower appellate court was right in the construction placed by it on the instrument of the 15th march 1883, that the advance of rs. 200 by the mortgagee to the mortgagor was for a period of ten years certain, and that while, on the one hand, the mortgagee could not enforce his rights during that period, on the other hand the mortgagor was not entitled before that period had expired to redeem the property. it is essentially a case in which, looking to the merits of the matter between the parties, their obligations were mutual and reciprocal; and there is nothing in the terms of the deed to take it out of the ordinary rules applicable to documents of.....
Judgment:

Straight, J.

1. In this case the plaintiffs-appellants are the assignees of certain mortgagors-deed, dated the 15th March 1883, of a house charged as security for the muua. debt, and the plaintiffs in this case sue for redemption of the mortgage and bring the money into court for that purpose. The plea of the defendant-respondent is, in effect and substance, that the suit is premature; that the term of the mortgage was ten years, and that neither the plaintiffs nor their assignor was in a position, under the terms of the instrument, to redeem the property before the ten years had expired. The Lower Appellate Court has adopted this view, and it is this decision of the Court which is impeached by the appeal before us.

2. The primary question is, under the term of the instrument of the 15th March 1883, what was the time at which the principal money advanced on the mortgage was payable by the mortgagor to the mortgagee? In other words, after what date would the mortgagee be able to enforce his rights under the mortgage-deed

3. I have no doubt that the Lower Appellate Court was right in the construction placed by it on the instrument of the 15th March 1883, that the advance of Rs. 200 by the mortgagee to the mortgagor was for a period of ten years certain, and that while, on the one hand, the mortgagee could not enforce his rights during that period, on the other hand the mortgagor was not entitled before that period had expired to redeem the property. It is essentially a case in which, looking to the merits of the matter between the parties, their obligations were mutual and reciprocal; and there is nothing in the terms of the deed to take it out of the ordinary rules applicable to documents of this nature. Moreover, in the deed itself it is provided that the principal money is to be paid 'at the promised time,' and that, in default of such payment, certain contingencies shall arise. Reading this expression with the rest of the language of the instrument, it is obvious that by 'promised time' was meant a specific point of time, and that was the period of ten years for which the mortgage was made. I may add that I entirely concur with the views of the learned Judges of the Bombay High Court expressed in Vadju v. Vadju I.L.R. 5 Bom. 22 with regard to the principles which should be applied to such matters, and to which expression had been given in Sections 60 and 61 of the Transfer of Property Act.

4. The appeal must be dismissed with costs.

Tyrrell, J.

5. I am of the same opinion.


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