1. This is an appeal by the defendant-mortgagee against whom a suit for redemption has been decreed on payment of the principal amount secured by the mortgage. The defence with which I am concerned in this appeal is two-fold : first, that the equity of redemption has been lost and, second, that if the equity of redemption has not been lost, then the mortgagor is liable to pay certain other sums under the contract embodied in the mortgage deed. The contract is to the following effect:
I shall pay the rent to the zamindars; the mortgagee has nothing to do with the rent; if the rent is paid by the mortgagee, then I or the field have nothing to do with it, rather the mortgagee may get the fields entered in his name as tenant-in-chief.
2. I read this covenant as a double contract. The first contract is to the effect that the rent of the fields mortgaged would be paid by the mortgagor to the zamindars. The second contract is to the effect that if the rent is not paid by the mortgagor but is paid by the mortgagee, then the equity of redemption would be lost and the mortgagee would become the owner of the property and the mortgagor will not be responsible for the same. It is obvious that initially the responsibility was with the mortgagor to pay the rent to the zamindar and it was only in the event of the mortgagor failing to pay the same that the mortgagee was entitled to pay the rent and under those circumstances the mortgagee would further be entitled to become the tenant, in-chief.
3. The defendant says that the mortgagor never paid the rent to the zamindars, but on the contrary, the mortgagee has been paying the rent throughout. He therefore argues that under the second contract mentioned by me, the equity of redemption has been lost and the plaintiff is not entitled to maintain the suit. The reply of the mortgagor however is that the contract that the equity of redemption will be lost and the mortgagee will become the tenant-in-chief under certain contingencies is a clog on the equity of redemption and is not enforceable. The Courts below have held that this covenant is a clog on the equity of redemption and it has not been seriously argued before me that it is not such a colng. The contention of the mortgagee however is that if this portion of the second contract is a clog on the equity of redemption then the resulting portion of the second contract, namely that if the rent is paid by the mortgagee then the mortgagor of the field will have nothing to do will also fail inasmuch as there is no consideration for the same. I feel inclined to agree with this contention. It is not equitable to hold that if the rent is paid by the mortgagee then the mortgagee will not be entitled to get his name entered on the field and will also not be entitled to get back the money because of the stipulation that the mortgagor and the field will have nothing to do with the rent. This stipulation has got to be read as a whole, and, if for certain reasons, any portion of the stipulation cannot be carried out because it is unlawful, then the entire contract falls to the ground and the original contract to the effect that the mortgagor shall pay the rent to the zamindar remains intact.
4. It is argued on behalf of the respondent-mortgagor that under Section 76, Clause (c), T.P. Act, the duty is upon the mortgagee to pay the rent to the zamindars and therefore if the mortgagees paid the rent, they are not entitled to get the same from the mortgagors but this is the duty of the mortgagee, in the absence of a contract to the contrary. The reply of the appellant is that under Section 72, T.P. Act, if the mortgagee spends any sum of money as is necessary for preservation of the mortgaged property from forfeiture, then, in the absence of a contract to the contrary, the mortgagee may add such money to the principal money. In the present case it is said that there is a distinct contract to the effect that the mortgagor shall pay the rent to the zamindars. Reliance is also placed on Sections 65, 69 and 70, Contract Act, which go to show that if any person pays any money which another person is liable to pay, then the person paying the money is entitled to be reimbursed by the person on whom the original liability lay.
5. It was then contended on behalf of the appellant, and that seems to be the reasoning of the Courts below as well, that the covenant to pay the rent to the zamindars was a personal covenant, and if the defendant-mortgagee wanted to avail himself of this personal covenant he should have filed a suit for enforcing the personal liability within time and should not have waited when the mortgagor sought redemption, inasmuch as under Section 60, T.P. Act, the mortgagor is entitled to redeem the property on the payment of the mortgage money. That the mortgagor is liable to pay this money admits of no doubt from what I have said above, and the only question is whether the mortgagee ought to bring a separate suit for the amount within the time allowed by law or whether he can ask for this sum to be added to the mortgage money. Learned Counsel on behalf of the appellant relies on the Privy Council case of Bachchu Lal v. Mohammad Mah 1933 P.C. 136, in which their Lordships of the Privy Council interpreted a certain clause in the mortgage deed as amounting to a personal covenant, but at the same time held that the mere fact that the mortgagors entered into a personal covenant to pay a certain sum does not prevent the said amount being taken into consideration in settling the total sums which should be paid by the mortgagors when redeeming the property covered by the mortgage. Order 34, Rule 7, Civil P.C., also contemplates a similar contingency.
6. This case was argued before me for the first time on 4th October 1933, when I remitted certain issues in order to find out as to what amount the mortgagor should pay to the mortgagee on the head of rent paid by the mortgagee to the zamindar together with a reasonable rate of interest. The finding that has been returned by the Court below to which no objection has been taken by either party is that the amount of rent and interest due to the mortgagee up till 20th December 1933, is Rs. 895.11.0. I accept this finding and hold that the mortgagor should pay this amount over and above the principal sum secured by the mortgage before redemption can be had. I therefore allow this appeal, set aside the decree of the Courts below and direct the office to prepare a fresh decree under Order 34, Rule 7. The defendant is entitled to a sum of Rs. 960-11-0 together with costs in all Courts. Interest will run upon Rs. 960-11-0, from to-day up till the date of payment at 6 per cent, per annum. In the event of the failure of this sum, the plaintiffs' suit should be dismissed with costs in all Courts. The usual six months from, today for payment will be fixed by the preliminary decree. Leave to file an appeal by way of Letters Patent is allowed to the plaintiffs-respondents.