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Hafiz Amir Muhammad and anr. Vs. Wazir - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All318; 39Ind.Cas.643
AppellantHafiz Amir Muhammad and anr.
RespondentWazir
Excerpt:
construction of document - mortgage--redemption. - - the mortgage was created on the 8th of december 1909 and the present suit was brought in the year 1914. we have examined the document and completely fail to understand how the courts below could have placed upon it the interpretation that the mortgage was not redeemable within a period of ten years......'if within a period of ten years we have paid the whole of the mortgage-money in one lump sum, the mortgaged property specified below will be redeemed. if according to our promise, we do not pay the whole of the mortgage-money, the property will be sold outright and the aforesaid creditor by means of the present deed will be considered as in proprietary possession of the mortgaged property.' the fourth clause provides 'that for the period of the mortgage, the mortgagee would have no claim for interest nor the mortgagor for profits.' to us the meaning of the contract is plain. under clause 2 the mortgagor was to redeem within a period of ten years and if the mortgage was not redeemed within that period, then the mortgagee on the expiry of that period was to become the owner of the.....
Judgment:

1. This appeal arises out of a suit for redemption brought by the plaintiffs-appellants. It has been dismissed by both the Courts below, on the finding that the suit was premature in that according to the terms of the agreement between the parses the mortgage was not redeemable within a period of ten years. The mortgage was created on the 8th of December 1909 and the present suit was brought in the year 1914. We have examined the document and completely fail to understand how the Courts below could have placed upon it the interpretation that the mortgage was not redeemable within a period of ten years. The relevant clauses are as follows: 'if within a period of ten years we have paid the whole of the mortgage-money in one lump sum, the mortgaged property specified below will be redeemed. If according to our promise, we do not pay the whole of the mortgage-money, the property will be sold outright and the aforesaid creditor by means of the present deed will be considered as in proprietary possession of the mortgaged property.' The fourth clause provides 'that for the period of the mortgage, the mortgagee would have no claim for interest nor the mortgagor for profits.' To us the meaning of the contract is plain. Under Clause 2 the mortgagor was to redeem within a period of ten years and if the mortgage was not redeemed within that period, then the mortgagee on the expiry of that period was to become the owner of the property. To hold that the mortgagor cannot redeem within the period of ten years in the above circumstances would be to hold that he could never redeem at all, for in the understanding of the parties, on the expiry of that period, the property was to become the property of the mortgagee and the mortgage was to be no longer redeemable. It is useless considering other documents that have been discussed in other cases. We have been referred to three, including the case quoted by the Court below. In none of those three does the document coincide in language with the document which is now before us, and none of those three decisions are of the slightest assistance to us in interpreting the present document. We hold that the decisions of the Courts below are incorrect, that the plaintiff is entitled to redeem within the period of ten years, and that the suit is not premature. We, therefore, set aside the decision of tie Court below and remand the case to the Court of first, instance through the lower Appellate Court with directions to re-admit the case upon its file and to proceed to hear and determine it according to law. The costs of this appeal and of the appeal in the lower Appellate Court will be costs in the cause and will abide the result.


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