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Ram Das Choube and ors. Vs. Musammat Simirkha Kuar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.144
AppellantRam Das Choube and ors.
RespondentMusammat Simirkha Kuar and ors.
Cases ReferredBhartu v. Dalip
Excerpt:
mortgage - redemption--usufructuary mortgage--subsequent simple mortgages--covenant to pay the amount of the simple mortgages first and then to redeem the prior mortgage--consolidation of mortgages--clog on redemption--limitation act (ix of 1908), section 31--time within which the mortgagee to institute, suit. - - 99-15-0. by the terms of it the mortgagee is to remain in possession and enjoy the rents and profits in lieu of interest, and redemption is to take place on payment of the principal amount in the month of jeth......and as such seek to redeem. the defence to the suit was that there were two other mortgages, the amounts secured by which the plaintiffs were bound to pay before they could redeem the mortgage in question.2. the court of first instance held that the plaintiffs' sale deed being a registered document took priority over the two mortgages set up by the defendants which are unregistered and that the plaintiffs had no notice of those mortgages. it made a decree for redemption on payment of the amount of the mortgage of 1886.3. on appeal the lower appellate court found that the plaintiffs had notice of the two unregistered mortgages, dated respectively asarh badi 15th 1949, and magh badi 10th 1953 put forward by the defendants. that is a finding of fact and must be accepted in second appeal......
Judgment:

1. This appeal arises out of a suit brought by the plaintiffs for redemption of a mortgage, dated Magh Badi 13th, 1293 fasli (1886) made by Nimar, father of Gobardhan, the sixth defendant. The property mortgaged is a tenancy at fixed rates and the amount secured by the mortgage is Rs. 99-15-0. By the terms of it the mortgagee is to remain in possession and enjoy the rents and profits in lieu of interest, and redemption is to take place on payment of the principal amount in the month of Jeth. The plaintiffs are transferees from the sixth defendant Gobardhan and as such seek to redeem. The defence to the suit was that there were two other mortgages, the amounts secured by which the plaintiffs were bound to pay before they could redeem the mortgage in question.

2. The Court of first instance held that the plaintiffs' sale deed being a registered document took priority over the two mortgages set up by the defendants which are unregistered and that the plaintiffs had no notice of those mortgages. It made a decree for redemption on payment of the amount of the mortgage of 1886.

3. On appeal the lower appellate Court found that the plaintiffs had notice of the two unregistered mortgages, dated respectively Asarh Badi 15th 1949, and Magh Badi 10th 1953 put forward by the defendants. That is a finding of fact and must be accepted in second appeal. The plaintiffs, therefore, must be held to have had notice of these two mortgages and cannot take priority over them by reason of their sale-deed being a registered document. The lower appellate Court was of opinion that the two documents referred to above created a further charge on the property and that the plaintiffs were not competent to redeem without payment of the amounts due upon those mortgages. It accordingly made a decree for redemption conditional on the payment of Rs. 552-4-0, the amount found by it to be due on account of all the three mortgages.

4. The principal contention in this appeal is that, for the purpose of redeeming the mortgage of 1886, the plaintiffs are not liable to pay the amounts secured by the two mortgages mentioned above, and that the conditions contained in those mortgages are a clog on the plaintiff's right of redemption and should not be enforced. We have considered the terms of those mortgages. The mortgage deed of Asarh Badi 15th, 1949 (1892), provides as follows: 'Whenever I am paying off the mortgage debt, I shall first pay the principal sum due under this document with compound interest and then the amount of the mortgage'. The third mortgage deed dated, Magh Badi 10th, 1952 (1896), contains this provision : Whenever 1, the said debtor, should pay off the mortgage debt in the month of Jeth of any year, I should first pay the principal sum with interest due under this bond in a lump sum and then the mortgage money. I shall then take back the fields and the documents'. The property comprised in the first mortgage is made security for the amounts secured by these two mortgages and is specifically set forth in the mortgage deeds. Upon a true construction of those documents we are of opinion that the mortgagor contemplated simultaneous payment of the amounts of the three documents and that the two later documents placed a further charge on the property which was the subject of all the three mortgages. There was thus a consolidation of the three mortgages and the mortgagors are not entitled to recover possession of the mortgaged property unless they pay the amounts secured by all the three mortgages. We do not think that a clog or fetter was imposed on the equity of redemption. This case is very similar to that or Muhammad Abdul Hamid v. Jairaj Mal (1906) 26 A.W.N. 267. In that case certain mortgagors took a further advance on the security of a second mortgage of the same property and covenanted in the second mortgage deed that they should not be at liberty to redeem it, without at the same time, redeeming the first mortgage. It was held that this was a valid covenant and did not amount to a clog or fetter on the right of redemption. The same view was held in Bhikham Singh v. Shankar Dayal Singh (1909) 1 Ind. Cas. 345 : 6 A.L.J. 255. The learned vakil for the appellants pressed us with the ruling in Bhartu v. Dalip (1906) 26 A.W.N. 278. We think that case is distinguishable. We, therefore, agree with the Court below in holding that the plaintiffs are not entitled to recover possession of the property in suit unless they pay the amounts of the three mortgages made in respect of that property.

5. The only other contention put forward on behalf of the appellants is that, having regard to the provisions of Section 31 of the Limitation Act, No. IX of 1908, the mortgagees are not entitled to the amount secured by the mortgage of 1892 as at the date of the suit, that is, on the 17th of January 1907, more than 12 years had elapsed from the date of that mortgage and their right to recover the mortgage money had become time barred. We think this contention is based upon a misconstruction of the provisions of Section 31 of the Limitation Act, 1908. Tinder that section a mortgagee has the right to bring a suit for sale within two years of the passing of the Act, unless 60 years from the date when the mortgage became due would elapse before the expiry of the two years. The right of the defendants to enforce the mortgage of 1892 subsists till the expiry of two years from the date of the passing of the Act and had not, therefore, become extinct. They are consequently entitled to claim that the amount secured by that mortgage should be paid by the mortgagors.

6. For the above reasons we dismiss the appeal with costs, but we extend the time for payment of the mortgage money as found by the Court below for a period of four months from this date.


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