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Jadu Rai and anr. Vs. Ram Birich Rai and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in70Ind.Cas.637
AppellantJadu Rai and anr.
RespondentRam Birich Rai and anr.
Excerpt:
transfer of property act (iv of 1s82), section 61 - consolidation of mortgages--'contract, to the contrary.' - .....contrary. under the act, consolidation is only permitted if a contract to the contrary exists. the words 'contract to the contrary' appear to have been deliberately used in the act. it is not easy to see why the framers did not use words similar to the corresponding section of the conveyance act, 'in the absence of a contrary intention expressed in the mortgage-deeds or one of them.' i am unable to distinguish a contract to the contrary in this connection from a contrary intention, and, in any circumstance, i can only look upon the stipulation in question as a contract to the contrary. therefore, this appeal must succeed, i accordingly decree the appeal, set aside the decree of the lower appellate court and restore the decree of the court of fist instance, the plaintiffs will pay their.....
Judgment:

Stuart, J.

1. The sole point for decision in this appeal is, whether a stipulation in the latter mortgage-deed of the 12th June 1015 amounts to a 'contract to the contrary' within the meaning of Section 61, Act IV of 1882. Here two mortgages were executed, one on the 13th June 1913 and the other on the 12th June 1915. By each mortgage a separate property was mortgaged with possession. The second mortgage contained this clause, 'and when in any year in the month of Jeth the whole of the mortgage-money due under this deed together with the amount due under the deed of the 13th June 1913 shall be paid, then the mortgage shall be redeemable and the deed shall be taken back.'

2. Now, we have the mortgagor seeking to redeem one mortgage. He is entitled to do so in the absence of a contract to the contrary. Under the Act, consolidation is only permitted if a contract to the contrary exists. The words 'contract to the contrary' appear to have been deliberately used in the Act. It is not easy to see why the framers did not use words similar to the corresponding section of the Conveyance Act, 'in the absence of a contrary intention expressed in the mortgage-deeds or one of them.' I am unable to distinguish a contract to the contrary in this connection from a contrary intention, and, in any circumstance, I can only look upon the stipulation in question as a contract to the contrary. Therefore, this appeal must succeed, I accordingly decree the appeal, set aside the decree of the lower Appellate Court and restore the decree of the Court of fist instance, The plaintiffs will pay their own costs and those of the defendants throughout.


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