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Deo NaraIn Vs. Bhola Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All506
AppellantDeo Narain
RespondentBhola Singh and ors.
Excerpt:
.....seeks to enforce is clearly one by which the mortgagee's right to retain possession of the mortgaged property for the full term of 54 years is limited, if not extinguished altogether, in so far as the mortgage becomes redeemable at any time after the plaintiff-appellant pays rs. 5. another line of argument adopted by the learned advocate for the appellant is that the mortgagee failed to pay a sum of rs. it has, however, been found by both the courts below that the defendant mortgagee paid more than had bean left with him for discharge of certain incumbrances which do not appear to have been clearly specified. the mortgagee failed to pay off such incumbrances. 599 the mortgagee failed to pay anything more than rs. here the mortgagee, if he be considered to have been at all in..........not having performed his part of the contract, in that he failed to pay a sum of rs. 75 to a prior mortgagee, as he ought to have done in terms of the mortgage deed, is not entitled to insist on the term of 54 years stipulated in the mortgage deed.3. both the lower courts have dismissed the suit, holding against the plaintiff-appellant on both the grounds referred to above.4. the same two grounds have been pressed in appeal before us. the plaintiff-appellant relies upon an agreement, dated 19th february 1924, which, according to him, relieves him of the condition which prohibits redemption within 54 years. it appears that the plaintiff and the mortgagee had differences regarding certain matter in respect of the mortgage in question. they agreed inter alia that, if the plaintiff.....
Judgment:

Niamatullah, J.

1. This appeal arises out of a suit brought by the plaintiff appellant for redemption of three mortgages two of 3rd February 1916 and a third dated 10th August 1918, executed by defendants 10 and 11 in favour of defendant 1 for Rs. 1,100, 300 and 500, respectively. One of the conditions agreed on was that the mortgagors would not be at liberty to redeem within 54 years. The equity of redemption subsequently passed to the plaintiff by a deed dated 9bh August 1919. The present suit was brought on 30th January 1925 for redemption in disregard of the terms of 54 years already referred to.

2. The pleas in defence, which it is necessary to mention for the purpose of this appeal, were:

(1) That the suit was premature, and (2) that the mortgagee, not having performed his part of the contract, in that he failed to pay a sum of Rs. 75 to a prior mortgagee, as he ought to have done in terms of the mortgage deed, is not entitled to insist on the term of 54 years stipulated in the mortgage deed.

3. Both the lower Courts have dismissed the suit, holding against the plaintiff-appellant on both the grounds referred to above.

4. The same two grounds have been pressed in appeal before us. The plaintiff-appellant relies upon an agreement, dated 19th February 1924, which, according to him, relieves him of the condition which prohibits redemption within 54 years. It appears that the plaintiff and the mortgagee had differences regarding certain matter in respect of the mortgage in question. They agreed inter alia that, if the plaintiff paid a sum of Rs. 200 over and above the mortgage money due under the three deeds,. by 20th March 1924, he would be entitled to redeem, regardless of the term of 54 years originally stipulated for in the mortgage deed. This agreement was not registered. The plaintiff-appellant sues for redemption before the expiry of that term, relying on the condition agreed to in the document already referred to. The defendants successfully contended before the lower Courts that the agreement not having been registered is not admissible in evidence for the purpose of relieving the plaintiff against the stipulation postponing redemption for 54 years. It appears to us that the decision of this question must turn on the applicability or otherwise of Section 17, Registration Act, to the condition embodied in the agreement entitling the plaintiff to redeem at any time before the expiry of 54 years, for which term redemption was not permissible under the mortgage deed. The learned advocate for the appellant relies on Section 17, Sub-section 2(11), and contends that the agreement is no more than a receipt as it acknowledges payment by the mortgagors of two sums of Rs. 75 and 81 and, as such, it is exempted from registration. We are unable to accede to this contention. It is true in one part of the agreement receipt of the two sums is acknowledged; but the document is relied on by the plaintiff-appellant not as a receipt but as one entitling him to enforce an agreement under which the defendant mortgagee bound himself to allow redemption at any time in case the plaintiff-appellant paid the sum of Rs. 200 before 20th March 1924. In other words, the document dated 19th February 1924 is not only a receipt, as one part of it would make it, but a good deal more, having regard to the rest of its contents. The question which we have to decide as regards the admissibility of that document is whether the condition to which reference has already been made, makes it a document which creates, declares, assigns, limits or extinguishes any right, title or interest in an immovable property of the value of Rs. 100 or upwards. We think that the covenant which the plaintiff-appellant seeks to enforce is clearly one by which the mortgagee's right to retain possession of the mortgaged property for the full term of 54 years is limited, if not extinguished altogether, in so far as the mortgage becomes redeemable at any time after the plaintiff-appellant pays Rs. 200 on 20th March 1924. This being so the agreement dated 19th February 1924 has been rightly held by the lower Courts to be compulsorily registrable and therefore not admissible in evidence for the purpose for which the plaintiff-appellant desires to use it.

5. Another line of argument adopted by the learned advocate for the appellant is that the mortgagee failed to pay a sum of Rs. 82 to a prior usufructuary mortgagee out of a certain sum which had been left with the defendant mortgagee for payment to prior mortgagees. That the defendant did not pay off such prior mortgagee is no longer in dispute. It has, however, been found by both the Courts below that the defendant mortgagee paid more than had bean left with him for discharge of certain incumbrances which do not appear to have been clearly specified. The mortgagee did not pay the sum of Rs. 82 partly because the funds left with him for payment to prior mortgagees had been exhausted and partly because the particular mortgage under which the sum of Rs. 82 was due had not been specific. The argument, therefore, put forward on behalf of the appellant that the mortgagee, not having performed his part of the contract, is not entitled to insist on the mortgagor performing his part namely, that he should not redeem within 54 years, cannot stand. Apart from this, we are of opinion that, even if the mortgagee had been in default in that connexion, the argument put forward on behalf of the appellant could not have succeeded. It is sought to be supported by reference to Chhatku Rai v. Baldeo Shukul [1912] 34 All 659, where, out of a sum of Rs. 599-15-0, to be advanced under the mortgage deed, the mortgagee had to pay Rs. 50-15-0 in cash and the rest of the mortgage money was left with him for payment to prior incumbrancers. The mortgagee failed to pay off such incumbrances. It was held, on general equitable grounds, that the mortgagee could not insist on the long term of ten years. The judgment of the learned single Judge of this Court, which was reversed in Letters Patent appeal, make mention of Sections 39, 55 and 73, Contract Act, which had been relied on before him. Though the judgment of the Bench hearing the Letters Patent appeal does not make any mention of Section 39, the ratio decide in adopted be it could only be based on that section which provides that if.

a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract.

6. The view which commended itself to that Bench apparently is that where out of Rs. 599 the mortgagee failed to pay anything more than Rs. 50, he should be deemed to have

refused to perform or do have disabled himself from performing, his promise

practically in its 'entirety.' The circumstances before us are altogether different. Here the mortgagee, if he be considered to have been at all in default, has failed to pay Rs. 82 out of a total consideration of Rs. 1,800. Under these circumstances, we are of opinion that the terms of Section 39, Contract Act, are wholly inapplicable to the case before us. Indeed, it has been doubted whether the provisions of that section are applicable to a case of mortgage which is a transfer and beyond the domain of contrasts to which alone Section 39 is applicable. It is not, however, necessary for us to express an opinion on this question. We assume that the provisions of that section are applicable in a proper case, but hold that it is quite inapplicable to the circumstances before us, Neither of the grounds urged in appeal before us can be sustained. Accordingly, we uphold the decree of the lower appellate Court and dismiss this appeal with costs.


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