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Musammat Hira Kuar Vs. Gambhir Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All143; 62Ind.Cas.985
AppellantMusammat Hira Kuar
RespondentGambhir Singh and ors.
Cases Referred and Dalthawan Singh v. Amardeo Singh
Excerpt:
mortgagee - period for redemption fixed--interest to be paid annually--mortgagee entitled to sue on occurrence of default--mortgagor, whether can redeem before expiry of period fixed for redemption. - .....payment of the interest, he could sue at once for the whole rs. 600 plus interest then due. if the mortgagee was entitled to come in before the expiry of the term, it was argued that it would be inequitable to hold that the mortgagor was not equally entitled to redeem except on the expiry of the forty years. it has been held in a number of rulings that the rights of a mortgagor and a mortgagee are co-extensive, and we do not think that the ruling of their lordships of the privy council in bakhtawar begam v. husaini khanam 23 ind. cas. 355 : 36 a. 195 : 18 c.w.n. 586 : 26 m.l.j. 474 : 12 a.l.j. 473 : 19 c.l.j. 477 : (1914) m.w.n. 411 : 15 m.l.t. 389 : 16 bom l.r. 344 : 1 l.w. 813 : 41 i.a. 84 (p.c.) entirely overrules this proposition. according to that ruling there may be a contract.....
Judgment:

1. This appeal arises out of a suit for redemption of a mortgage, dated the 8th of August 1900, and for possession of the mortgaged property. The mortgage was in the form of a simple mortgage and contained in it a covenant, among other things, that the mortgagor would repay the principal amount in forty years and interest at the stipulated rate annually, and that if default be made in the payment of interest the mortgagee would be entitled to sue at once for the entire amount together with unpaid interest. On the same day the mortgagor executed a theka in favour of the mortgagee for a term of forty years, the usufruct being the same as the annual interest on the mortgage. Shortly afterwards Sadho Singh brought a suit for pre-emption, alleging that the whole of the transaction of mortgage and lease amounted in fast to a usufructuary mortgage, and succeeded. The result was that he obtained possession. The suit is brought against him, Sadho Singh, for redemption and possession. We think he cannot be heard to say that his position is not, in fact, that of a usufructuary mortgagee. Both the Courts have dismissed the suit, on the ground that it was premature and that under the terms of the mortgage-deed it was not redeemable until the expiry of forty years. On appeal before us it has been argued strenuously that having regard to the covenant contained in this particular mortgage, that is to say, the contrast between the parties, it was open to the mortgagee to sue not only for the unpaid interest in any year that was in default but for the whole amount of the mortgage-money. Thus five (5) years afterwards if default was made in the payment of the interest, he could sue at once for the whole Rs. 600 plus interest then due. If the mortgagee was entitled to come in before the expiry of the term, it was argued that it would be inequitable to hold that the mortgagor was not equally entitled to redeem except on the expiry of the forty years. It has been held in a number of rulings that the rights of a mortgagor and a mortgagee are co-extensive, and we do not think that the ruling of their Lordships of the Privy Council in Bakhtawar Begam v. Husaini Khanam 23 Ind. Cas. 355 : 36 A. 195 : 18 C.W.N. 586 : 26 M.L.J. 474 : 12 A.L.J. 473 : 19 C.L.J. 477 : (1914) M.W.N. 411 : 15 M.L.T. 389 : 16 Bom L.R. 344 : 1 L.W. 813 : 41 I.A. 84 (P.C.) entirely overrules this proposition. According to that ruling there may be a contract between the parties which would enable the mortgagor to come in for redemption before the period fixed. The cases which have been quoted on the other side are Ram Prasad v. Jagrup 15 Ind. Cas. 880 : 10 A.L.J. 157 and Dalthawan Singh v. Amardeo Singh 23 Ind. Cas. 926 : 12 A.L.J. 492. In those cases it was argued that because a very long term had been fixed, the bargain was harsh and unconscionable. We do not think those rulings have any application in this ease. Having regard to the contract contained in the mortgage-deed, we think it is only equitable that the plaintiff should be allowed to redeem it now. After all the pre-emptor is not in any way damnified. He gets back his money. The result is that we allow the appeal. A decree will be prepared under Order XXXIV, Rule 7, giving the plaintiff six months from this date within which to pay in the money. The effect of this decree will be that if the decree-holder pays Rs. 600 within the time fixed, she will obtain possession over the whole of the property mortgaged, the theka being thus rendered null and void. The plaintiff is entitled to her costs throughout, including in this Court fees on the higher scale.


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