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Shiam Lal Vs. Jagdamba Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1928All131; 108Ind.Cas.561
AppellantShiam Lal
RespondentJagdamba Prasad and anr.
Cases ReferredRam Saran Lal v. Amrita Kuar
Excerpt:
- - 2. it is argued on behalf of the plaintiff-appellant that the restriction put on the right of the mortgagor to redeem the mortgage before the expiry of the stipulated period by allowing him to do so only on condition of paying the mortgage money from his own pocket and not by raising the same by a mortgage or sale of the mortgaged property is a clog on the right of redemption and is bad in law. 3. it is well settled that in the absence of any agreement, expressed or implied to the contrary the right to redeem and the right to foreclose must be regarded as co-extensive:.....of rs. 1,500. the plaintiff purchased the equity of redemption on 8th july 1922 and deposited the mortgage money in court, on 16th november 1923, under the provisions of section 83, t.p. act, and as the mortgagees did not withdraw the money and consent to the redemption of the mortgage, the plaintiff-appellant filed the suit giving rise to the present appeal. the defence to the suit was that the usufructuary mortgage sought to be redeemed by the plaintiff was for a term of 15 years certain, and the suit having been filed before the expiry of that term was premature. the trial court held that though the mortgage was for a term of 15 years, the mortgagor was given a right to redeem the mortgage before the expiry of that period, provided he paid the mortgage money from his own pocket and.....
Judgment:

Iqbal Ahmad, J.

1. This is a plaintiff's appeal and arises out of a suit for redemption of a mortgage, dated the 4th February 1922, executed by Udai Singh, in favour of the defendant-respondents, Jagdamba Prasad and Debi Charan, for a sum of Rs. 1,500. The plaintiff purchased the equity of redemption on 8th July 1922 and deposited the mortgage money in Court, on 16th November 1923, under the provisions of Section 83, T.P. Act, and as the mortgagees did not withdraw the money and consent to the redemption of the mortgage, the plaintiff-appellant filed the suit giving rise to the present appeal. The defence to the suit was that the usufructuary mortgage sought to be redeemed by the plaintiff was for a term of 15 years certain, and the suit having been filed before the expiry of that term was premature. The trial Court held that though the mortgage was for a term of 15 years, the mortgagor was given a right to redeem the mortgage before the expiry of that period, provided he paid the mortgage money from his own pocket and not by raising the same by a mortgage or sale of the mortgaged property. It further held that the condition embodied in the mortgage-deed that the mortgagor would be entitled to redeem before the expiry of 15 years only on condition of paying the mortgage money from his own pocket constituted a fetter on the equity of redemption and, therefore, the plaintiff-appellant, notwithstanding the fact that the suit was filed before the expiry of 15 years was entitled to a decree. On appeal by the defendants the lower appellate Court held that the condition referred to above was a grace and a concession given to the mortgagor by the mortgagees and could only be exercised by the mortgagor himself and did not constitute a clog on the equity of redemption. In that view of the case the lower appellate Court reversed the decree of the trial Court and dismissed the plaintiff's suit.

2. It is argued on behalf of the plaintiff-appellant that the restriction put on the right of the mortgagor to redeem the mortgage before the expiry of the stipulated period by allowing him to do so only on condition of paying the mortgage money from his own pocket and not by raising the same by a mortgage or sale of the mortgaged property is a clog on the right of redemption and is bad in law. In the view that I take of the true interpretation of the mortgage-deed this question does not arise. In my opinion the mortgage was for a term of 15 years certain and no option was given to the mortgagor to redeem the mortgage before the expiry of 15 years. The document, after reciting that the mortgagor had usufructuarily mortgaged the property for a term of 15 years, viz., from kharif 1330 to the end of 1314 fasli, in favour of the mortgagees, proceeds as follows:

And it is agreed that neither the mortgagor will be entitled to the usufruct of the mortgaged property nor the mortgagees will be entitled to interest on the mortgage money... and, after paying the mortgage money from my own house, I would redeem the mortgaged property within the period fixed. If I pay after mortgaging or selling the property to some other person, then the mortgagees will be entitled not to accept the money and not to quit possession. In case of default and non-payment of the principal money the mortgagees will be entitled to obtain proprietary possession over the mortgaged property by suit and then this very mortgage-deed will be deemed to be a sale-deed and the mortgage money to be sale consideration... and the mortgagees are authorized to bring suits for arrears and enhancement of cent... till the period fixed by this mortgage. Therefore, I have executed this usufructuary mortgage-deed containing terms of a conditional sale for a period of fifteen years.

3. It is well settled that in the absence of any agreement, expressed or implied to the contrary the right to redeem and the right to foreclose must be regarded as co-extensive: vide Vadju v. Vadju [1880] 5 Bom. 22. In the present case there can be no doubt that the mortgage was made for a period of 15 years, certain. The only question is: Does the document evidence any contract by which the mortgagor, notwithstanding the fact that the mortgage was for a period of 15 years, was given the right to redeem the mortgage before the expiry of that period? Reliance is placed by the learned Counsel for the appellant on the following sentences in the mortgage-deed in support of his contention that the mortgagor was given such a right:

Aur mublighan zar-i-rahin apne ghar se ada kar ke haqiyat marhuna andar miyad faki-i-rahin kara lunga. Agar kahin rahin wa bai karke ada karun to murtahin rupiya na lewen aur qabza na chhoren.

4. As already observed above, I am unable to agree with this contention. It seems to me that the mere use of the words 'andar miyad' in the mortgage-deed is not enough to evidence a contract to the effect that the mortgagor was given a right to redeem before the expiry of the stipulated period for which the mortgage was effected. As observed in the case already cited, the use of the word 'within' is not a sufficient indication of

the intention of the parties that the ordinary principle should not prevail with respect to the mortgagor and that he might redeem in a less period than ten years. We should expect some stronger expression than that word if the intention were that the mortgagor's position was to be more favourable than that of the mortgagee.

5. If it was intended by the parties to the mortgage transaction that the mortgagor could redeem the mortgage before the expiry of the stipulated period, I should have expected in the mortgage-deed some clear expression of that intention by inserting some such words as 'even before the expiry of 15 years the mortgagor will be entitled to redeem the mortgage.' If it was intended by the passages from the mortgage-deed quoted above, to give the mortgagor the right to redeem before the expiry of the stipulated period, one would have further expected in the mortgage-deed some conditions on which the mortgage was to be redeemed on the expiry of that period; but there is no such condition in the deed. The conclusion, therefore, is permissible that the condition noted above had reference to redemption on the expiry of the period of 15 years. It appears to me that the context in which the words 'andar miyad' occur points to the conclusion that those words had reference to the period fixed for the redemption of the mortgage and were not intended to entitle the mortgagor at any time before the expiry of 15 years to redeem the mortgage. If it was not the intention one would have further expected that the subsequent clauses in the deed, giving the mortgagees a right to institute suits for arrears and enhancement of rent, etc., for a period of 15 years would have been qualified by some condition to the effect that if the mortgage was redeemed before the expiry of 15 years, the powers conceded to the mortgagees by those clauses would come to an end. For the reasons given above I hold that the mortgage sought to be redeemed was for a period of 15 years, certain, and no option was given to the mortgagor to redeem the mortgage under any circumstances before the expiry of that period. I would, therefore, dismiss the appeal.

Sen, J.

6. This appeal arises out of a suit for redemption of a mortgage, dated 4th February 1922. It is not the original mortgagor who seeks to redeem. The person who seeks to redeem is the purchaser of the equity of redemption under a document dated 8th July 1922. The suit was resisted on the ground that it was premature; that the mortgage was for a term of 15 years certain; that before the expiry of the said period it was not open to any person deriving title from the mortgagor to ask to redeem the property and that any condition in the mortgage bond allowing redemption to the mortgagor before 15 years was a personal concession to him and could not be availed of by his transferee.

7. The whole case hinges upon a construction of the mortgage bond. It is unnecessary for me to reproduce the terms which have been set out in the judgment of my learned brother. As has been said above, the parties originally contemplated to mortgage the property for a period of 15 years certain, but it was further agreed between the parties that if the mortgagor paid the mortgage money from his own house he would be entitled to redeem the property 'andar miyad' that is, before the expiry of the 15 years. The mortgage-deed further provided that the mortgagor will not be entitled to redeem the property by mortgaging or selling it to another party. Now, what does the expression 'andar miyad' mean? If the matter were res integra, I would be prepared to hold that 'andar miyad' meant 'before the expiry of 15 years' and that according to the stipulations contained in the mortgage-bond the suit was not premature. In every mortgage transaction, in the absence of a contract to the contrary, there is a reciprocity of mutual rights and obligations between the parties and the rights of the mortgagee to sell or to foreclose are co-extensive with the right of the mortgagor to redeem. The mortgagee cannot sue to call in his money before the stipulated period any more than the mortgagor can seek to redeem before that period has run out. This is the general rule, but it may be varied and qualified by a special contract. In the case of Bakhtawar Begam v. Husaini Khanam [1914] 36 All. 195 their Lordships observed that

ordinarily, and in the absence of special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period. But there is nothing in law to prevent the parties from making a provision that the mortgagor may discharge the debt within the specified period, and take back the property. Such a provision is usually to the advantage of the mortgagor.

8. In a number of cases it has been held that where the mortgage bond was couched in terms similar to the one which is before us, and provided that the mortgage was redeemable in or within a certain number of years, the stipulation in question must be taken to mean that it was not redeemable till after the expiry of the said term: Raghubar Dayal v. Budhu Lal [1886] 8 All. 95 and Husaini Khanam v. Ali Husain Khan [1907] 29 All. 471. Following the cursus curiae I must hold that if the mortgage-deed provided that the mortgage was redeemable in or within 15 years, the mortgage was not redeemable till after the expiry of the fixed term.

9. The mortgage-deed, however, provides a special term that if the mortgagor pays that mortgage money 'from his house without selling or mortgaging' before the expiry of the stipulated period, he would be entitled to redeem. I do not find anything unreasonable or unconscionable in this agreement. The original contract was to create a mortgage for a fixed term. The mortgagee relaxes the rigidity of this agreement as to the period of the mortgage in favour of the mortgagor, but upon certain terms. He is reluctant to be ousted by another mortgagee or vendee before the expiry of 15 years, but he is more tender to the mortgagor. The stipulation in question does not amount to a clog on the equity of redemption.

10. The learned Counsel for the appellant takes his stand upon the case of Ram Saran Lal v. Amrita Kuar [1881] 3 All. 369 (F.B.). It appears to me that the facts of the case were very different from the facts of the case now under appeal. In that case a mortgage by conditional sale was made by the execution of two contemporaneous documents executed in the year 1862 which provided that the mortgage was to operate for a term of ten years.

11. The documents further provided that if the mortgagor desired to redeem he could do so with his own money and not with any borrowed capital. The period of ten years expired in 1872. In 1878 a person claiming to be the transferee from the original mortgagor sought to redeem the mortgage and was met with the plea that according to the terms of the mortgage the right to redeem was restricted to the mortgagor himself and could not be availed of by his transferee. This plea was repelled by this Court which described the stipulation in the bond as wanton, arbitrary and oppressive. In that case that stipulation raised an absolute bar to redemption except in the case of the mortgagor himself and with a further restriction that he was not to redeem with borrowed capital. In the present case there was no legal bar to the parties making a mortgage of the property for a term of 15 years which, in the normal course of things, would not be redeemable before the expiry of the said term. Where, however, indulgence is granted by the mortgagee to the mortgagor, namely, that without borrowing money, without selling or mortgaging, if he were to offer the money to the mortgagee before the expiry of 15 years, the mortgagee should have no objection to allow the property to be redeemed, there does not seem to me to be any equitable ground for considering that a condition of this description was not legally valid or enforceable. The rigidity of the original contract, that the mortgage was not redeemable for a period of 15 years, is, by reason of this special contract, relaxed in favour of the mortgagor, but it is an indulgence a concession and nothing more. The plaintiff-appellant is not entitled to the benefit of this concession. I hold that the case has been rightly decided by the Court below. I would, therefore, dismiss the appeal with costs.


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