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Hari Ram and ors. Vs. Gokul Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All624
AppellantHari Ram and ors.
RespondentGokul Prasad and anr.
Excerpt:
- - there is also the fact that in the mortgage deed itself as well as in one of the receipts subsequently granted mathura prasad was described as the manager of the funds of the temple of janki ballabh, lanka kalpi. it follows that if they failed to redeem the property soon after the period of seven years the mortgagee would continue to appropriate the profits in lieu of his interest and in that way pay himself the interest for the subsequent years......deed dated 12th september 1907 for rs. 8,000 executed by defendants 1, 2 and 3 in favour of mathura prasad. defendants 4, 5 and 6 are the sons of the mortgagors. the plaintiffs are members of mathura prasad's family, who has died since, and are his heirs under the hindu law. the defence of the mortgagors was that the amount had been advanced not by mathura prasad in his personal capacity but as a trustee of an endowment, and the present plaintiffs who were heirs to his personal estate were not entitled to recover this amount; that there was no right given to the mortgagee to recover interest, his only remedy being to enter into possession; that there was no stipulation to pay interest after the fixed period of seven years; and lastly that the claim for foreclosure was barred by.....
Judgment:

Sulaiman, J.

1. This is a defendants appeal arising out of a suit for sale on the basis of a mortgage deed dated 12th September 1907 for Rs. 8,000 executed by defendants 1, 2 and 3 in favour of Mathura Prasad. Defendants 4, 5 and 6 are the sons of the mortgagors. The plaintiffs are members of Mathura Prasad's family, who has died since, and are his heirs under the Hindu law. The defence of the mortgagors was that the amount had been advanced not by Mathura Prasad in his personal capacity but as a trustee of an endowment, and the present plaintiffs who were heirs to his personal estate were not entitled to recover this amount; that there was no right given to the mortgagee to recover interest, his only remedy being to enter into possession; that there was no stipulation to pay interest after the fixed period of seven years; and lastly that the claim for foreclosure was barred by Section 10, Bundelkhand Alienation of Land Act, (Act 2 of 1903). The other defendants denied the execution of the mortgage deed and also pleaded want of legal necessity. The Court below has found that the Bundelkhand Alienation of Land Act applied to this case, and in view of the provisions of Section 10 of that Act it has held that the condition intended to operate by way of conditional sale was null and void, and that the only decree to which the plaintiffs could be entitled was one for sale. He has found all the other issues in favour of the plaintiff. The defendants have accordingly appealed to this Court.

2. The execution of the document cannot be seriously disputed. It has been fully proved by the evidence adduced by the plaintiffs. The plea as to want of legal necessity is of no avail in respect of Rs. 6,000 out of Rs. 8,000, inasmuch as this sum represented the antecedent debts of the fathers of the contesting defendants and they were bound to pay the amount unless it were shown that the debt was tainted with illegality or immorality. This is not suggested here. The balance of Rs. 2,000 was paid in cash before the Sub-Registrar and there is no express recital in the deed itself showing the purpose for which this amount was required. We have only the facts that all the three brothers who were the adult members of the family had joined in the document and the amount was paid to all of them. The plaintiffs produced two witnesses, Madan Mohan Lal and Har Charan Lal, who deposed that this amount was required by the mortgagors for their household expenses. This evidence has been believed by the learned Subordinate Judge, who has also strongly relied on the circumstance that all the adult members of the family who were then alive had joined in this transaction. Having regard to the facts that the transaction is a very old one, that the mortgagee Mathura Prasad who could have given direct evidence is dead, that none of the three mortgagors has gone into the witness box and submitted himself to cross-examination and that all the adult members of the family had joined in the transaction, we see no reason to differ from the view taken by the learned Subordinate Judge who heard these witnesses. On the question whether the amount was advanced by Mathura Prasad out of the trust funds we need not express any final opinion. There is plenty of documentary evidence to show that a trust and a temple mentioned in the mortgage deed did exist, and the oral evidence of the plaintiffs to the effect that no such temple existed does not appear to be consistent with such documentary evidence. There is also the fact that in the mortgage deed itself as well as in one of the receipts subsequently granted Mathura Prasad was described as the manager of the funds of the temple of Janki Ballabh, Lanka Kalpi. It is, however, an admitted fact that Mathura Prasad himself was the founder of this endowment and the present plaintiffs are his legal heirs. In the absence of any proof that some other person is the trustee after the death of Mathura Prasad, the legal heirs of the founder would have a right to administer the trust. Indeed, an agreement dated 17th January 1901 provides that the mukhia of the family shall be the head manager of the endowed property. We therefore think that the plaintiffs have a locus standi to sue and the suit cannot be dismissed on this plea.

3. The next point urged is that the only remedy open to the mortgagee was to enter into possession when a default in the payment of interest was made and that was the only way in which he was given a right to recover interest. This contention cannot be accepted. He was merely given an option to enter into possession in lieu of interest, but that was not his sole remedy. There is a clause in the deed which says that

so long as the entire amount of mortgage money and interest is not paid the mortgagors shall not transfer the property mortgaged to any one in any way.

4. That obviously means that interest was to be a charge on the property and was payable as such, and was not only to be discharged out of the usufruct. Similarly, there is another clause which states that the mortgagee in ease of non-payment could get the property fore-closed or sold by auction and realize the mortgage money and the amount due to him whatever it may be out of the sale proceeds. That in our opinion includes the claim to recover interest.

5. The next point urged is that in any case there was no liability to pay interest after the fixed period of seven years. The mortgage deed provided that interest would be paid every year during the fixed period of seven years and in case of default the mortgagee would enter into possession, and that there would be redemption after the period of seven years. No doubt it is true that there is no express covenant in the document which specifically states that interest would be recoverable even after the period of seven years has expired. On the other hand, there is no clear recital which would show that no interest after that period would be due. The learned advocate for the appellants merely relies on the circumstance that there was a specific provision to pay interest during the period of seven years. The question is purely one of the interpretation of the mortgage deed in question. The parties contemplated regular payment of interest every year and redemption after seven years, and that is why no provision was expressly made as regards their rights and liabilities after that period had expired. There is one more circumstance which suggests that interest would have been realized by the mortgagee even after the seven years had passed, In case of default of payment the mortgagee was entitled to remain in possession and appropriate the profits in lieu of interest. The mortgagors could only redeem the property if they paid the mortgage money. It follows that if they failed to redeem the property soon after the period of seven years the mortgagee would continue to appropriate the profits in lieu of his interest and in that way pay himself the interest for the subsequent years. Had the intention been that no interest would be payable after seven years, one would have expected to find a provision that the mortgagee would be entitled to enter into possession for that period only. There is no such limitation.

6. The point is not wholly free from difficulty, but having regard to the observations of their Lordships of the Privy Council in the case of Mathura Das v. Raja Narindra Bahadur [1897] 19 All. 39 which has been followed by a Bench of this Court in Mahadeo Prasad v. Dhiraj Singh A.I.R. 1923 All. 7 we think that in the absence of any express recital to the contrary it must be presumed from the terms of the document that subsequent interest was contemplated, The result therefore is that this appeal is dismissed with costs.


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