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Ram Parshad Rai and anr. Vs. Nawab Chowdhury and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in16Ind.Cas.222a
AppellantRam Parshad Rai and anr.
RespondentNawab Chowdhury and ors.
Cases ReferredSee Sheo Shankar v. Parma Mahton
Excerpt:
construction of deed - mortgage--charge--simple bond--limitation. - - 282. in that case, the document in question was very like the document with which we have to deal here......out in the judgment of the lower appellate court. it is sufficient to say here that it contains a promise by dargahi to pay rs. 500 with certain interest thereon and a promise by him that he will pay this amount before he redeems the mortgage. in the closing passage of the document, the executant describes it as a tamasuk. the present suit was instituted in june 1910 by persons in whom the rights of bhawani din are now vested. defendants nos. 1 to 8 are the representatives of dargahi and the remaining defendants are subsequent transferees of the property. it seems to us quite clear that the document on which the suit is based is not a mortgage nor can we hold that it effected a charge upon the property. see sheo shankar v. parma mahton 26 a. 559 at p. 564 : a.w.n. (1904) 123 : 1 a.l.j......
Judgment:

1. On April 15th, 1864, one Dargahi made an usufructuary mortgage of property in favour of Bhawani Din and placed him in possession. Four days later, he executed in favour of Bhawani Din a document on which the present suit is based. The material portion of the document is set out in the judgment of the lower Appellate Court. It is sufficient to say here that it contains a promise by Dargahi to pay Rs. 500 with certain interest thereon and a promise by him that he will pay this amount before he redeems the mortgage. In the closing passage of the document, the executant describes it as a tamasuk. The present suit was instituted in June 1910 by persons in whom the rights of Bhawani Din are now vested. Defendants Nos. 1 to 8 are the representatives of Dargahi and the remaining defendants are subsequent transferees of the property. It seems to us quite clear that the document on which the suit is based is not a mortgage nor can we hold that it effected a charge upon the property. See Sheo Shankar v. Parma Mahton 26 A. 559 at p. 564 : A.W.N. (1904) 123 : 1 A.L.J. 282. In that case, the document in question was very like the document with which we have to deal here. It seems to us that the document is a mere money bond and that the suit is either barred by limitation or is premature. So far as the promise to pay the money is concerned, it seems clear that the obligee might have enforced payment at any time after the execution of the document and any suit on this promise is long since barred by limitation whether Article 67 or Article 80 applies. Assuming that a suit will be on this bond in Case the usufructuary mortgage is redeemed without payment of the amount due on this document, such a suit cannot yet be brought, for redemption has not taken place and there has been no breach of the condition that the mortgagor will not redeem without payment of the amount due on this bond. The appeal fails and is dismissed with costs.


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