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Achhaibar Singh and ors. Vs. Musammat Radhi and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All405(1); 40Ind.Cas.404
AppellantAchhaibar Singh and ors.
RespondentMusammat Radhi and ors.
Excerpt:
mortgage, usufructuary - redemption--hypothecation byway of simple mortgage--limitation. - .....on the security of the same property. the property in question was hypothecated by way of simple mortgage, and there was a further covenant to the effect that this simple mortgage should be paid off before the usufructuary mortgage is redeemed. the plaintiffs claim to redeem the usufructuary mortgage without paying any sum due under the simple mortgage of the 4th of september 1691. the lower appellate court has maintained the claim of the plaintiffs upon a line of reasoning based on the fact that a portion of the property hypothecated consisted of an occupancy holding, the transfer or alienation of which was forbidden by the law in force at the time, namely, by section 9 of act xii of 1881. the point is an arguable one, and it does not seem altogether easy to reconcile some of.....
Judgment:

1. This is an appeal by the defendants in a suit for redemption. The memorandum of appeal purports to raise two substantial points; but one of these, namely, that relating to the sum payable under a decree of the 9th of December 1892, is concluded by an adverse finding of fact of the lower Appellate Court. There remains only one substantial point. The mortgage sought to be redeemed is of the 28th of February 1891. On the 4th of September 1891 a further advance was made by the mortgagee to the mortgagor on the security of the same property. The property in question was hypothecated by way of simple mortgage, and there was a further covenant to the effect that this simple mortgage should be paid off before the usufructuary mortgage is redeemed. The plaintiffs claim to redeem the usufructuary mortgage without paying any sum due under the simple mortgage of the 4th of September 1691. The lower Appellate Court has maintained the claim of the plaintiffs upon a line of reasoning based on the fact that a portion of the property hypothecated consisted of an occupancy holding, the transfer or alienation of which was forbidden by the law in force at the time, namely, by Section 9 of Act XII of 1881. The point is an arguable one, and it does not seem altogether easy to reconcile some of the decisions of this Court which have been laid before us. The plaintiffs-respondents, however, undertake to support the decree of the Court below on a slightly different ground. The learned Counsel on behalf of the respondents says that whether the mortgage in question was of an occupancy holding or of a fixed rate holding, and whether or not the present plaintiffs are estopped from denying that it was a mortgage of a fixed rate tenancy, nevertheless the plaintiffs are entitled to redeem on payment of the debt due under the usufructuary mortgage only. This plea is based upon the fact that the mortgage-deed of the 4th of September 1891 was barred, by limitation at the time when the present suit was brought, so that the mortgagee could not have maintained a suit for the recovery of any money due under the same. This contention is supported by authority of this Court, namely, the case of Kesar Kunwar v. Kashi Ram 30 Ind. Cas. 777 : 13 A.L.J. 889 : 37 A. 634. One of us was a party to that. decision and we are in any case not prepared to re-consider it. This rejoinder, therefore, on the part of the plaintiffs-respondents must prevail. We dismiss this appeal with costs, including fees on the high scale.


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