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Musammat Dulari and anr. Vs. Lal Bahadur Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1915All136; 28Ind.Cas.129
AppellantMusammat Dulari and anr.
RespondentLal Bahadur Singh
Excerpt:
mortgage - redemption not allowed before 59 years--no clog on equity of redemption. - - this plea was not very clearly taken in the memorandum of appeal, but it was based in argument on the case of chhatku rai v......in accordance with the stipulation in the deed now in suit. the second plea raised is that the deed in suit does not in terms preclude redemption prior to the expiration of the period of 59 years. i have read the deed. it appears to me to be so drafted as to ensure to the mortgagee possession for 59 years before the mortgagor is entitled to redeem. the third plea taken is that it lay on the defendant to prove that the transaction was fair and bona fide. according to the pleadings in the court of first instance it was alleged that the original mortgagor, musammat nanka, was induced to sign the deed in suit fraudulently in ignorance of the fact that the term of 59 years was entered within which the mortgage could not be redeemed. the district judge has found that the executant of the.....
Judgment:

Piggott, J.

1. This was a suit for redemption of a usufructuary mortgage, dated March 14th, 1898. The suit was instituted on the 19th of July 1912. It has been dismissed by the District Judge, on the ground that it was premature as the terms of the deed provided for redemption only after the expiration of a period of 59 years. The first point taken in appeal is that the plaintiffs were entitled to redeem before the expiry of the term, because the defendant had himself broken an important stipulation in the contract by neglecting to pay the sum of Rs. 75 due to one Before, who was a usufructuary mortgagee of a portion of the land in suit. This plea was not very clearly taken in the memorandum of appeal, but it was based in argument on the case of Chhatku Rai v. Baldeo Shukul 17 Ind. Cas. 340 : 10 A.L.J. 330 : 34 A. 659. I so far accepted this contention as to remand two issues to the Court below in regard to the position of Before and to the paying off of his prior mortgage. The findings returned dispose of the appellants' contention on this point, as it was found that Before was in possession as mortgagee until he was redeemed by the defendant in accordance with the stipulation in the deed now in suit. The second plea raised is that the deed in suit does not in terms preclude redemption prior to the expiration of the period of 59 years. I have read the deed. It appears to me to be so drafted as to ensure to the mortgagee possession for 59 years before the mortgagor is entitled to redeem. The third plea taken is that it lay on the defendant to prove that the transaction was fair and bona fide. According to the pleadings in the Court of first instance it was alleged that the original mortgagor, Musammat Nanka, was induced to sign the deed in suit fraudulently in ignorance of the fact that the term of 59 years was entered within which the mortgage could not be redeemed. The District Judge has found that the executant of the deed was not a pardauanhin lady and he refers to the fact that she appeared personally before the Sub-Registrar at the time when the deed was registered, in argument before me stress has been laid on the fact that the mortgagor was a tenant of the mortgagee. It was not the plaintiffs case that the mortgagor did understand the stipulation in the deed which allowed the mortgagee possession for a period of 59 years, but that her assent to the same was induced by undue influence. This case, therefore, cannot be brought within the terms of Section 16 of the Indian Contract Act, IX of 1872; nor should I be prepared to hold that the relations between tenants-at-fixed-rates and zemindars in the eastern districts of these provinces are presumably such that the latter are in a position to dominate the will of the former. Evidence was given in the case both by the mortgagor and by the mortgagee, and in view of the finding of the lower Appellate Court against the plea of fraud set up in the plaint, I do not think the plaintiff can claim to have the stipulation postponing redemption for a period of 59 years set aside, merely on the argument that it appears under the circumstances somewhat onerous. This appeal, therefore, fails and I dismiss it with costs, including fees on the higher scale.


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