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Paras Ram Chaubey and anr. Vs. Sheo Dhan Pandey and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1932All558
AppellantParas Ram Chaubey and anr.
RespondentSheo Dhan Pandey and ors.
Excerpt:
- - we are clearly of opinion that this is so. we are satisfied that there is no difficulty as regards the identity of the usufructuary mortgage referred to in the bond of 1874 or as regards the property mortgaged thereunder......the identity of the usufructuary mortgage referred to in the bond of 1874 or as regards the property mortgaged thereunder.5. on the construction of the bond of 1874 there is no doubt that it creates a further charge on the property mortgaged by the deed of 1868. there is a clear stipulation to the effect that the mortgagor should not redeem the mortgage of 1868 without payment of the principal and interest due under the bond of 1874. the case of aditya prasad v. ram ratan lal is fully applicable, and we are bound to hold that the plaintiffs-respondents are not entitled to redeem plot no. 1257 in possession of the defendants-appellants under the mortgage of 1868 without payment of the principal and interest due under the subsequent bond of 1874. accordingly we allow this appeal,.....
Judgment:

Niamatullah, J.

1. This is a defendant's appeal and arises out of a suit for redemption. Both the Courts below have decreed it but on payment of a much smaller amount than that claimed by the defendants-appellants who are the legal representatives of the original mortgagee Ramyad Ghaube. The plaintiffs are transferees of the original mortgagor Brij Raj Dube. The principal question in controversy between, the parties relates to a deed of further charge for Rs. 100 carrying interest at one-eighth per cent. It is alleged to have been executed by the mortgagor on 22nd September 1874. The possessory mortgage sought to be redeemed was executed much earlier, on 4th August 1868. The defendants-appellants claim a sum of Rs. 1,858-0-9 alleged to be due under the bond of 1574. Both the lower Courts have disallowed this sum and decreed redemption on payment of Rs. 213. It is not now in dispute that under the mortgage of 1868 the defendants-appellants were in possession, of two plots, one of which was allowed to be redeemed on payment of Rs. 86. The lower Courts have therefore allowed redemption of the remaining plot No. 1358 on payment of the remaining sum of Rs. 213 out of Rs. 299 the original consideration of the usufructuary mortgage.

2. As regards the bond of 1874, the trial Court held that the mortgagee's remedy for recovery of the sum due thereunder is by barred by limitation, and that there-fore no payment can be claimed as a condition precedent to the redemption of the usufructuary mortgage. The lower appellate Court has disallowed the defendants-appellants' claim en the additional ground that it has not been shown that the bond of 1874 relates to the same property which had been mortgaged in 1868.

3. The case relied on by the lower appellate Court and which, might have influenced the trial Court is Dambar Singh v. Munawar Ali Khan A.I.R. 1915 All. 420, in which the opinion was expressed that a mortgagee cannot insist on payment of the sum due under a tacking bond unless his suit on the basis thereof is in time when the mortgagor's suit for redemption of the possessory mortgage is brought. In later rulings of this Court, e.g., Ram Kishore Ahir v. Ram Nandan Ram : AIR1928All99 this view was not approved and it was pointed out that limitation can be pleaded as against! a plaintiff's claim and that no defence can be barred by any article of Schedule 1, Lim. Act. We are clearly of opinion that this is so. The defendants-appellants are certainly entitled to have the sum due under the bond of 1874, if they are otherwise entitled regardless of the question whether their suit on foot of that bond if now brought, would be barred by limitation.

4. The next question is whether the bond of 1874 creates a charge on the property sought to be redeemed. The lower appellate Court has thrown some doubt on that aspect of the case. The plaintiffs-respondents were not aware of the particulars of the mortgage of 1868. They stated in the plaint certain conjectural particulars as regards the date of the mortgage, the property in possession of the mortgagee and the amount advanced thereunder. It was not till the defendants-appellants filed their second written statement and a phatbandi which is in reality part of an award made by certain arbitrators in a dispute relating to the partition of tie family property of the defendants-appellants and their co-parceners that the plaintiffs ascertained the correct particulars of the mortgage of 1868. Accordingly they amended their plaint and made allegations in accordance with the entries in the aforesaid phatbandi and such entries have been accepted by both the Courts below in decreeing their suit for redemption. Now the phatbandi also mentions the fact that besides the mortgage of 1868 the mortgagor had executed, on 22nd September 1874, another bond for Rs. 100 in favour of the same mortgagee and that the sum advanced under the bond was charged on the same property as was in possession of the mortgagee under the deed of 1868. It is not disputed before us that the phatbandi is admissible in evidence for proving the fact that the sum advanced under the bond of 1874 is charged on the property which had been mortgaged in 1868 but it is contended that the entry in the phatbandi is not conclusive and it is possible that it refers to some other bond executed between the same parties on the same date for the same sum. It has never been suggested in this litigation that there was any other bond with identical description. The necessity of extrinsic evidence to establish the property hypothecated under the bond of 1874 arose from the fact that it did not, specifically mention the property which had been mortgaged under the deed of 1863, which has not been produced. The lower appellate Court has referred to a discrepancy in the name of the village according to the recitals contained in the bond of 1874. There is an obscure reference to a village Jauhi in which the property hypothecated under the bond of 1874 is recited to be situated. This may be a correct recital and it does appear that certain properties to which the possessory mortgage did not relate were hypothecated by the bond of 1874. Besides the security afforded, by such property it contains a stipulation to the effect that the possessory mortgage should not be redeemed by the mortgagor without payment of the sum due under the bond of 1874. The difficulty arises from the fact that the bond of 1874 does not give any particulars of the possessory mortgage. This ambiguity is cleared up by the phatbandi to which reference has already been made. We are satisfied that there is no difficulty as regards the identity of the usufructuary mortgage referred to in the bond of 1874 or as regards the property mortgaged thereunder.

5. On the construction of the bond of 1874 there is no doubt that it creates a further charge on the property mortgaged by the deed of 1868. There is a clear stipulation to the effect that the mortgagor should not redeem the mortgage of 1868 without payment of the principal and interest due under the bond of 1874. The case of Aditya Prasad v. Ram Ratan Lal is fully applicable, and we are bound to hold that the plaintiffs-respondents are not entitled to redeem plot No. 1257 in possession of the defendants-appellants under the mortgage of 1868 without payment of the principal and interest due under the subsequent bond of 1874. Accordingly we allow this appeal, set aside the decree passed by the Courts below and substitute therefor a decree in favour of the plaintiffs-respondents for redemption of plot No. 1257 on payment of Rs. 213 plus principal and interest due under the bond of 22nd September 1874. The period for redemption is fixed at six months. The usual redemption decree shall be prepared.


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