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imam Baksh Vs. Musammat Anwari Begam and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.718
Appellantimam Baksh
RespondentMusammat Anwari Begam and ors.
Excerpt:
mortgage - agreement in subsequent mortgage to pay money due under prior simple mortgage at time of redemption of subsequent mortgage--valid agreement--consolidation--clog on equity of redemption. - .....instance gave effect to this plea and in decreeing the suit directed the plaintiff to redeem the earlier mortgage. on appeal, the lower appellate court allowed the plaintiff's appeal and set aside that part of the order of the first court directing payment of the earlier mortgage. the lower appellate court was of opinion that there was nothing in both the deeds to justify the mortgagee in insisting on payment of the money due on the earlier mortgage of the 23rd august 1892 before redemption of the mortgage now in suit. in second appeal to this court, it is contended that the view taken by the lower appellate court is wrong and that the defendant is entitled to have the earlier mortgage redeemed before the mortgage in suit. various rulings have been cited before us. we have to look to.....
Judgment:

1. The plaintiff in this suit sought redemption of a usufructuary mortgage executed by her in favour of the defendant on the 26th of August 1892. One of the defences to the suit was that before the plaintiff is permitted to redeem the mortgage in suit, she should be obliged to redeem a simple mortgage, dated the 23rd August 1892, also in favour of the defendant. The Court of first instance gave effect to this plea and in decreeing the suit directed the plaintiff to redeem the earlier mortgage. On appeal, the lower Appellate Court allowed the plaintiff's appeal and set aside that part of the order of the first Court directing payment of the earlier mortgage. The lower Appellate Court was of opinion that there was nothing in both the deeds to justify the mortgagee in insisting on payment of the money due on the earlier mortgage of the 23rd August 1892 before redemption of the mortgage now in suit. In second appeal to this Court, it is contended that the view taken by the lower Appellate Court is wrong and that the defendant is entitled to have the earlier mortgage redeemed before the mortgage in suit. Various rulings have been cited before us. We have to look to the deed of mortgage so as to ascertain as far as possible the intention of the parties. The material part of the mortgage-deed, dated the 26th August 1892, runs as follows--'Aur chunke ham muqira ne mublig 99 rupiya bashmul nam Hakim Syed Qurban Husain shouhar apne ke bamoujib tamassuk mourakha 23 August 1892 ke murtahin mousuf se bamakfuli isi makan marhuna ke karz liye hain, woh aul is zar rahan se ada kar ke tamassuk wapis kar lungi'. It appears to us that the covenant to re-pay the prior mortgage of the 23rd August 1892 before redeeming the usufructuary mortgage of the 26th August 1892 is part and parcel of the latter contract between the parties and the plaintiff should be held to that contract. The present case appears to us to be governed by the ruling of Brij Lal Singh v. Bhawani Singh 32 A. 651; 7 A.L.J. 821; 7 Ind. Cas. 115. We, therefore, allow this appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance. The appellant will have his costs both here and in the Court below and the costs here will include fees On the higher scale.


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