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Ulfat Rai Vs. Kanhaiya Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All41; 65Ind.Cas.819
AppellantUlfat Rai
RespondentKanhaiya Lal and ors.
Excerpt:
mortgage - redemption--usufructuary and simple mortgages executed, at one time--tacking--payment of both necessary at redemption--interest, deficiency in, to be recovered every year--entire deficiency, whether can be recovered, at redemption. - - as to the next point, namely, that the defendants could not get the deficiency in interest for the whole term of the mortgage, we are of opinion that this contention must also fail......to pay before he could get a decree for redemption.3. the first court held that the principal mortgage-money was due on the first mortgage but that there had been no deficiency in interest and that, in any case, interest could not be recovered for more than 12 years. on the second mortgage, which was a simple mortgage, the court held that the plaintiff was bound to redeem it along with the usufructuary mortgage, bath the parties appealed. the plaintiff's appeal was about his non-liability to pay the second mortgage. the defendants in their appeal claimed the deficiency in interest up to the time of redemption. the lower appellate court dismissed the plaintiff's appeal, holding that the simple mortgage was also to be paid along with the usufructuary mortgage, and decreed that of the.....
Judgment:

1. These two appeals are by the plaintiff in a redemption suit. The suit was by the plaintiff to redeem a usufructuary mortgage of the 22nd of November 1884 for Rs. 1,500, and for recovery of surplus profits. There was another simple mortgage of the same date which was to be paid along with the usufructuary mortgage. These mortgages were in favour of one Daulat Ram. He sold his lights as mortgagee to Srikishen Das and Tika on the 10th of April 1885. On the 20th of June 1912 the mortgagors sold the mortgaged property to Tika Ram. The result was that Tika Ram became the sole owner of half the mortgaged property and had the equity of redemption only in the other half.

2. The plaintiff, who is the son of Tika Ram, sues to redeem half the mortgage on payment of half the amount due under the usufructuary mortgage only, but does not want to pay the second mortgage which was contracted to be paid along with the usufructuary mortgage, The defendants pleaded in defense that the plaintiff was bound to pay the amount due on the second mortgage also and that there had been a deficiency in the interest due on the first mortgage which the plaintiff was also liable to pay before he could get a decree for redemption.

3. The First Court held that the principal mortgage-money was due on the first mortgage but that there had been no deficiency in interest and that, in any case, interest could not be recovered for more than 12 years. On the second mortgage, which was a simple mortgage, the Court held that the plaintiff was bound to redeem it along with the usufructuary mortgage, Bath the parties appealed. The plaintiff's appeal was about his non-liability to pay the second mortgage. The defendants in their appeal claimed the deficiency in interest up to the time of redemption. The lower Appellate Court dismissed the plaintiff's appeal, holding that the simple mortgage was also to be paid along with the usufructuary mortgage, and decreed that of the defendants, holding that the defendants were entitled to recover the deficiency in interest for the whole period of the mortgage and not for two years only as decreed by the First Court. Hence these two appeals by the plaintiff.

4. The first point argued with great vigour by Mr. Panna Lal, the learned Vakil for the plaintiff, was that the mortgagees having been given the option of recovering the deficiency in interest at the end of each year, could not go on adding it to the mortgage-money and thus increasing the amount payable at the time of the redemption of the mortgage. Ha also contended that the second mortgage, which was a simple one, being barred by time the defendants-mortgagees had no right left to claim the money due on that mortgage in addition to that due on the usufructuary mortgage. The second contention may be disposed of vary shortly. It is quite clear that the is second mortgage was in clear term tacked to the first and its payment was necessary before the property could be redeemed, No question of limitation arises in the case. As to the next point, namely, that the defendants could not get the deficiency in interest for the whole term of the mortgage, we are of opinion that this contention must also fail. This case is governed by the principle of law laid down in the cases of Chintaman v. Dulari 8 Ind. Cas. 570 : 33 A. 107 : 7 A.L.J. 1087 and Nathamuni Pillai v. Vengammal 40 Ind. Cas. 358 : 5 L.W. 593. The mere fact that a mortgagee was given an option, if he so chose of realising the deficiency by a suit directed against the person of the mortgagor did not make the interest cease to be a part of the mortgage-money. Before the plaintiff an succeed in a suit for redemption he must pay the mortgage money, which includes the principal and interest due at the time of redemption. The cases of Kesar Kunwar v. Kashi Ram 30 Ind. Cas. 777 : 13 A.L.J. 889 : 37 A. 634 and Ali Ahmad v. Kalka Prasad 37 Ind. Cas. 95: 14 A.L.J. 986 do not apply to the present case. These two points dispose of the two appeals of the plaintiff. There are, however, cross-objections by the defendants, by which they claim deficiency in interest up to the date fixed for payment. This they are entitled to get. It is, however, stated by Mr. Panna Lal for the plaintiff that the money found by the lower Appellate Court as due from the plaintiff has been deposited in Court for payment to the defendants in February 1920. If that is so, the decree of the Court below will be modified by adding thereto the deficiency in interest from June 1919 to February 1920 at the same rate at which it has been calculated in the account prepared in the Munsif's Court after issues were remitted to him by the lower Appellate Court. If the amount has not been so deposited, the defendants-mortgagees will get their deficiency in interest up to sis months from the date of this decree which will be the date fixed for payment. The result, therefore, is that we dismiss the two appeals and allow the cross-objections with costs in all Courts.


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