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Bengali Lal Vs. Bohre Panna Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All77; 113Ind.Cas.750
AppellantBengali Lal
RespondentBohre Panna Lal
Excerpt:
- - this latter sum may be left out of account as both the lower courts found against the mortgagee and held that he has failed to establish his allegation. the mortgagor undertook to pay the whole amount in two years and to redeem the property, and if he failed to do so, the mortgagee could foreclose for satisfaction of every part of the mortgage money......the mortgagee and held that he has failed to establish his allegation. as regards the amount of mortgage money, to which the defendant mortgagee is entitled on redemption, the stipulation contained in the mortgage-deed is that the mortgagee having advanced rs. 150 was entitled to possession of the, mortgaged property in lieu of rs. 100 (baewaz mubliq sau rupya... dakhal de diya) and was further entitled to interest on the remaining rs. 50 at the rate of rs. 2 per cent. per mensem. the mortgagor undertook to pay the entire mortgage money (mubligan mazkur) in two years and to obtain redemption and in case of default of payment of rs. 150 together with interest at the stipulated rate the mortgagee would be entitled to foreclose. the lower appellate court has held that the mortgagor is.....
Judgment:

Niamatullah, J.

1. The plaintiff-respondent brought the suit out of which this second appeal has arisen for redemption of a shop mortgaged by him under a deed dated 6th August 1881 on payment of Rs. 100 only. The defendant-mortgagee claimed Rs. 666 incurred by him in repairing the mortgaged property. This latter sum may be left out of account as both the lower Courts found against the mortgagee and held that he has failed to establish his allegation. As regards the amount of mortgage money, to which the defendant mortgagee is entitled on redemption, the stipulation contained in the mortgage-deed is that the mortgagee having advanced Rs. 150 was entitled to possession of the, mortgaged property in lieu of Rs. 100 (baewaz mubliq sau rupya... dakhal de diya) and was further entitled to interest on the remaining Rs. 50 at the rate of Rs. 2 per cent. per mensem. The mortgagor undertook to pay the entire mortgage money (mubligan mazkur) in two years and to obtain redemption and in case of default of payment of Rs. 150 together with interest at the stipulated rate the mortgagee would be entitled to foreclose. The lower appellate Court has held that the mortgagor is entitled to redeem on payment of only Rs. 100 in the absence of a stipulation in the deed making obligatory on him to pay the remaining Rs. 50 with interest. He is of opinion that the mortgagee's right to recover Rs. 50 with interest by foreclosure is now barred by limitation. I am unable to agree with him on either of the two points. The second one may be shortly disposed of. There can be no limitation against a plea in defence. If, therefore, the mortgagee-defendant is otherwise entitled to insist on payment of the Rs. 50 in question and its interest, the law of limitation cannot affect his claim. On the question of the interpretation of the deed I entertain no doubt as to what the intention of the parties was. The usufruct of the mortgaged property was considered just enough for the interest on Rs. 100, and it was, therefore, agreed that sum would carry no interest beyond the usufruct of the property. The remaining sum of Rs. 50 is agreed to carry interest as already stated. The property was hypothecated for the entire mortgage money whatever its amount may be. The mortgagor undertook to pay the whole amount in two years and to redeem the property, and if he failed to do so, the mortgagee could foreclose for satisfaction of every part of the mortgage money.

2. It is not necessary, for the defendant to enforce payment of the entire mortgage money before redemption, that there should be an express provision in the deed to the effect that redemption cannot take place without payment of Rs. 50 and interest. Section 60, T.P. Act entitles a mortgagor to redeem only

on payment or tender at a proper time and place, of the mortgage money.

3. Section 58 of the same Act defines mortgage money as

the principal money and interest, of which payment is secured for the time being.

4. Therefore, if, as part of the mortgage transaction payment of Rs. 50 and interest thereon is secured on the mortgaged property, it is mortgage money within the meaning of Section 60 and must be paid on redemption. On construction of the deed I hold that it is secured on the mortgaged property which can be foreclosed in satisfaction thereof. In this view of the case, I am of opinion that the Court of first instance took a correct view of the matter and rightly directed payment of the entire sum due under the mortgage-deed.

5. I, therefore, allow the appeal, discharge the decree passed by the lower appellate Court and restore that of the Court of first instance. The plaintiff-respondent shall pay the costs of the defendant-appellant in all the Courts.


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