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Babu Bhikham Singh Alias Babu Gaya Singh and ors. Vs. Shankar Dayal Singh Minior and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.345
AppellantBabu Bhikham Singh Alias Babu Gaya Singh and ors.
RespondentShankar Dayal Singh Minior and ors.
Excerpt:
.....usufructuary mortgage--mortgagor taking further adratines from mortgagee, on the security of name, property--mortgage--charge--redemption, clog on--covenant to pay further advances on redemption of first mortgage--whether mortgagor can redeem first mortgage without redeeming subsequent mortgages or charges. - - but notwithstanding these well-known principles, there is nothing to prevent a mortgagor taking from the mortgagee a further advance, and making the mortgaged property security for such further advance. o'conor on behalf of the respondents argued that the four deeds were clearly not mortgages as defined by section 58 of the transfer of property act and he contended that if they were not mortgages, we ought to follow the decision which we have already referred to. a perusal of..........is nothing to prevent a mortgagor taking from the mortgagee a further advance, and making the mortgaged property security for such further advance. transactions of this kind are of every day occurrence in england and we are unaware of any principle of law in this country that renders such a transaction illegal. mr. o'conor on behalf of the respondents argued that the four deeds were clearly not mortgages as defined by section 58 of the transfer of property act and he contended that if they were not mortgages, we ought to follow the decision which we have already referred to. no doubt that case in many aspects resembled the present. there had been a prior usufructuary mortgage and when the mortgagor sought to redeem, the defendants pleaded a covenant in a simple money bond that the.....
Judgment:

1. This was a suit for redemption of a mortgage. The defendants pleaded that before the mortgage was redeemed a number of other mortgages or charges should also be redeemed. The first court gave the plaintiffs a decree for redemption but on the condition that they should redeem not only the mortgages of the 9th July 1887, another mortgage of the same date and a third mortgage of the 29th May 1893, but they must also redeem four other mortgages, namely, one dated the 7th September 1893, another dated the 21st July 1894, another dated the 2nd October 1894, and a fourth dated the 13th August 1897. The lower appellate Court modified the decree of the Court of first instance by permitting the plaintiffs to redeem on payment of the amount due on the three mortgages first mentioned above and which are admitted in the plaint. The present appeal is brought by the defendants against the decree of the learned Subordinate Judge. The four documents dated respectively the 7th September 1893, the 21st July 1894, 2nd October 1894 and the 13th of August 1897 are in a similar form. They commence by a recital of the previous dealings between the parties. They refer to the prior mortgages and then they contain, with a slight variation, the following agreement on the part of the debtor: 'Whenever, in any year I shall pay the amount due under the mortgage I shall along with it also pay the principal and the interest due under this document and shall then take back the field and the document. I shall bring no claim in the meantime' At the foot of the document the transaction is described as 'a bond tacked on to mortgage.' Then follows a full specification of the property comprised in the mortgage. The several documents are stamped with the same stamp as they would bear if they were possessory mortgages. The learned Subordinate Judge in deciding in favour of the plaintiffs purported to follow the case of Sheo Shankar v. Parma Mahton 26 A. 559. He held that the four bonds were 'clogs 'on the equity of redemption and, therefore, void. There is no doubt that it is not competent for a mortgagee to reserve to himself any collateral advantage outside the mortgage contract and if there be any provision or stipulation which will have the effect of clogging or fettering the equity of redemption, it is void. But notwithstanding these well-known principles, there is nothing to prevent a mortgagor taking from the mortgagee a further advance, and making the mortgaged property security for such further advance. Transactions of this kind are of every day occurrence in England and we are unaware of any principle of law in this country that renders such a transaction illegal. Mr. O'Conor on behalf of the respondents argued that the four deeds were clearly not mortgages as defined by Section 58 of the Transfer of Property Act and he contended that if they were not mortgages, we ought to follow the decision which we have already referred to. No doubt that case in many aspects resembled the present. There had been a prior usufructuary mortgage and when the mortgagor sought to redeem, the defendants pleaded a covenant in a simple money bond that the money due on the latter must be first repaid. A perusal of that case clearly shows that the whole decision of the Court depended upon the construction placed by the court on the document itself. At page 564 We find the following passage: We are unable to agree with him,' (counsel for the defendants) 'being clearly of opinion that the later bond does not create any charge whatever on the property.' If we were satisfied that the four documents were simple money bonds creating no charge on the property our decision might be quite different. It is necessary, therefore, shortly to consider what is the nature of these documents. We have pointed out that they are stamped as possessory mortgages and that full specification of the mortgaged property is given just as would be given in a regular mortgage. At the time that the documents were executed the mortgagee was already in possession. It was, therefore, impossible to draw a regular usufructuary mortgage giving the mortgagee possession. We have no doubt whatever that what the parties intended to do, was to provide that the mortgagee should not be put out of possession until the further advance was paid up as well as the first advance. Mr. O'Conor says that it is essential to a creation of a mortgage that there should be a transfer of an interest in specific immoveable property and there is nothing of this kind in the present case. Section 100 of the Transfer of Property Act defines a charge and provides for the manner in which it is to be enforced. 'Where immoveable property of one person is by act of parties or operation of law made security for payment of money to another and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property.' Reading these documents, we have not the least hesitation in saying that the parties intended that the mortgaged property should be made security for payment of the further advances. We infer this intention from the language of the documents themselves. If then we are right in holding that the defendants had charges on the property, it remains to be considered whether their possession of these charges constituted any defence to the claim of the plaintiffs to redeem the usufructuary mortgage. In the case of Muhammad Abdul Hamid v. Jairaj Mal 26 A.W.N., 267, the plaintiffs sought to redeem a usufructuary mortgage. The defendants pleaded a covenant in a subsequent simple mortgage that both the amount advanced on the usufructuary mortgage and the subsequent mortgage should be paid off at the same time. The court held that the defendants were entitled to rely on the covenant. The learned Chief Justice says at page 268: 'It has been contended that the covenant contained in the later mortgage for payment of both the debts simultaneously is a clog on the equity of redemption and, therefore, unenforceable. But it seems to us that we should be extending the rule, which forbids the imposition of a clog or fetter on redemption, were we to hold that the agreement under consideration in this case falls under it,' It is true that in the, case just cited the second mortgage was a regular simple mortgage. It is possible that in the present case the defendants' security amounts to no more than a charge. But for the purposes of the question before us we can see no distinction between a simple mortgage and a charge. Under the provisions of Section 100 of the Transfer of Property Act, the owner of a charge is entitled to the benefit of all the provisions as to a mortgagee instituting a suit for sale of the mortgaged property. We think that the appeal should be allowed. We accordingly allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs including in this Court fees on the higher scale. Time for payment is extended to six months from this date.


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