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Kesar Kunwar Vs. Kashi Ram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1915All480; 30Ind.Cas.777
AppellantKesar Kunwar
RespondentKashi Ram
Excerpt:
mortgage - usufructuary mortgage--subsequent simple mortgage--covenant to pay money due under second mortgage first--second mortgage barred by limitation, effect of. - - we will assume that had the plaintiff brought the present suit before the second mortgage was barred by limitation and had the defendant pleaded that the first mortgage could not be redeemed until after the second had been paid off, the plea would have been a good one. the question remains whether such a plea is still good notwithstanding that the defendant is barred from maintaining any suit to enforce the second mortgage......had ever been paid upon foot of this second mortgage. at the date of institution of the present suit a suit to enforce payment of the second mortgage would be barred by limitation, unless it can be said that on the true construction of the deed it was not open either to the mortgagor to pay off the amount due, or to the mortgagee to bring a suit, until such time as the mortgagor was ready to redeem the earlier mortgage. it seems to us absolutely clear that if the mortgagor, a year after the execution of the second mortgage, had tendered the sum of rs. 95, plus a year's interest thereon, the mortgagee would have been legally bound to accept the same. he certainly could not have refused the tender by reason of the stipulation in the second bond that the mortgagor should pay the money.....
Judgment:

1. This appeal arises out of a suit brought to redeem certain property which was made the subject of a usufructuary mortgage, dated the 13th of February 1880. The principal sum secured was Rs. 900, and the mortgage-deed expressly provided that the usufruct was to go against the interest and that the mortgagor should not be entitled to an account from the mortgagee of the profits. The defence to the suit was that there had been a subsequent mortgage dated the 7th of July 1882, and that under the terms of this mortgage plaintiff could not succeed in the present suit without first paying off the amount due for principal and interest under the last-mentioned mortgage. The first Court gave effect to the defence and dismissed the suit. The lower Appellate Court allowed the appeal.

2. The second mortgage was for n sum of Rs. 95, re-payable with interest at the rate of thirty per cent, per annum. The deed after reciting the facts that the property had been previously mortgaged contains the following provisions: 'it is further stipulated that I should first pay the money due under this bond, and after that I should pay the mortgage-money.' It is clear from the terms of this mortgage, taken in conjunction with the fact that the whole usufruct was to be applied to the keeping down of interest upon the first mortgage, that the second mortgage was in fact a simple mortgage! So long as it remained unpaid the interest would accumulate at the rate of thirty per cent, per annum, and according to the covenant the money due thereunder for principal and interest must be paid before the mortgagor redeemed the first mortgage. No principal or interest had ever been paid upon foot of this second Mortgage. At the date of institution of the present suit a suit to enforce payment of the second mortgage would be barred by limitation, unless it can be said that on the true construction of the deed it was not open either to the mortgagor to pay off the amount due, or to the mortgagee to bring a suit, until such time as the mortgagor was ready to redeem the earlier mortgage. It seems to us absolutely clear that if the mortgagor, a year after the execution of the second mortgage, had tendered the sum of Rs. 95, plus a year's interest thereon, the mortgagee would have been legally bound to accept the same. He certainly could not have refused the tender by reason of the stipulation in the second bond that the mortgagor should pay the money due there under before he paid the mortgage on the earlier bond. Just in the same way we consider that if the mortgagee had brought a suit to enforce the second bond, the mortgagor could not have successfully pleaded that such suit was premature. The result is that we must take it that had a suit been brought on the 8th of August 1912 (that is, the day on which the written statement was filed) on the second mortgage, the same would have been barred by limitation. We will assume that had the plaintiff brought the present suit before the second mortgage was barred by limitation and had the defendant pleaded that the first mortgage could not be redeemed until after the second had been paid off, the plea would have been a good one. The question remains whether such a plea is still good notwithstanding that the defendant is barred from maintaining any suit to enforce the second mortgage. In effect the defendant is asking the Court to enforce against this property a claim which is barred by time. We think that this cannot be done and that the plaintiff is now entitled to recover possession of the property upon payment of the amount secured by the original mortgage. We dismiss the appeal with costs.


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