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Samar Ali Vs. Karim-ul-lah - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All402
AppellantSamar Ali
RespondentKarim-ul-lah
Excerpt:
mortgage - usufructuary mortgage--redemption--regulation xxxiv of 1803, sections 9, 10--act xxviii of 1855--act xiv of 1870--act iv of 1882 (transfer of property act), section 2. - - the plaintiff, who is the representative of the interest of the mortgagor to the extent of a sixth, comes into court and seeks to redeem his share, upon the allegation that the principal amount and interest due upon the mortgage have been satisfied by enjoyment of profits, and he is entitled to a balance of rs. it seems to me that the arrangement between the parties was, that the mortgagee should have possession of the property, and that he should enjoy the profits thereof, so long and until the principal sum was paid, in lieu of interest......for payment of a larger amount than twelve percent now this regulation is applicable to this mortgage contract of 1846, which is before us, if its provisions have not been disturbed by the operation of any subsequent legislation. if they have not, the matter stands now as it did in 1846, and we are bound by the rules mentioned in that regulation. the question then to be considered is, whether by act xxviii of 1855, or by act iv of 1882, the provisions of sections 9 and 10 of regulation xxxiv of 1803 have been affected or abrogated. now i do not think that it can he seriously denied that one of the rights affecting the contract of mortgage is the right of the mortgagor to redeem the property mortgaged. now, as i have said, the contract of mortgage in the present case being subject.....
Judgment:

Straight, Offg. C.J.

1. This is a suit for the redemption of a mortgage dated the 20th September 1846. The mortgage was of a usufructuary character, and admittedly under in the mortgagee obtained possession of the property. The plaintiff, who is the representative of the interest of the mortgagor to the extent of a sixth, comes into Court and seeks to redeem his share, upon the allegation that the principal amount and interest due upon the mortgage have been satisfied by enjoyment of profits, and he is entitled to a balance of Rs. 45 over and above what was sufficient to discharge the mortgage. The plaintiff's case is, that both upon the construction of the document and by the law which regulates and affects the operation of that instrument, the amount of money which the defendant derived by way of profits from the property was sufficient to pay off the mortgage-money and its interest at twelve per cent, per annum.

2. Now the terms of that document have been read to me by Mr. Boss, and the learned Counsel for the respondent has conceded that they have been accurately rendered. It seems to me that the arrangement between the parties was, that the mortgagee should have possession of the property, and that he should enjoy the profits thereof, so long and until the principal sum was paid, in lieu of interest. It is true that the word 'interest' was not specifically used; but it appears to me that this is the natural and reasonable construction of the deed; and such being the nature of the instrument, its effect was to place the mortgagee in possession of the profits of this property, which would enable him to realize annually a larger amount of interest than twelve per cent, per annum. By the Regulation issued by the Governor-General in Council, No. 34 of 1803, it was provided in Sections 9 and 10 that the rate of interest to be allowed to the mortgagee was not to exceed twelve per cent, per annum; and that no matter whether the parties made a contract for the payment of a larger amount of interest, the law would not recognize any contract for payment of a larger amount than twelve percent Now this Regulation is applicable to this mortgage contract of 1846, which is before us, if its provisions have not been disturbed by the operation of any subsequent legislation. If they have not, the matter stands now as it did in 1846, and we are bound by the rules mentioned in that Regulation. The question then to be considered is, whether by Act XXVIII of 1855, or by Act IV of 1882, the provisions of Sections 9 and 10 of Regulation XXXIV of 1803 have been affected or abrogated. Now I do not think that it can he seriously denied that one of the rights affecting the contract of mortgage is the right of the mortgagor to redeem the property mortgaged. Now, as I have said, the contract of mortgage in the present case being subject to the provisions of the Regulation, the charge would have been redeemed as soon as the principal mortgage-money with twelve per cent, interest had been realized by the mortgagee from the profits of the property. I think that those provisions of the Regulation of 1803 were incidents attached to the mortgagor's right, of which he was, and is, entitled to have the benefit. By Act XXVIII of 1855 all the rights conferred by this Regulation were specifically saved, and the same may be said of Act XIV of 1870.

3. Then with regard to Act IV of 1882, Section 2 of that Act specifically provides that 'rights and liabilities arising out of a legal relation constituted before this Act comes into force' shall be saved. This being the view I take of the matter, the appeal must be allowed, and the decree of the Judge being reversed, the case is remanded under Section 562 to the Court below for disposal on the merits.

4. The costs hitherto incurred in the litigation are to be costs in the cause.

Brodhurst, J.

5. I am of the same opinion.


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