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Gaya DIn Singh Vs. Gajadhar and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All542(2); 24Ind.Cas.611
AppellantGaya DIn Singh
RespondentGajadhar and ors.
Cases ReferredRanjit Khan v. Ramdhan Singh
Excerpt:
mortgage - redemption--simple mortgage providing redemption before prior usufructuary mortgage--clog on equity of redemption. - 1. this is a suit for the redemption of three usufructuary mortgages. there were seven simple mortgages on the property each of which provided that it should be redeemed before the usufructuary mortgages were redeemed. the do-fence was that the plaintiff was not entitled to redeem the usufructuary mortgages without redeeming the simple mortgages also. both the courts below have held that the stipulation in the simple mortgages amounts to a clog on the right of redemption and that the stipulation cannot be enforced. it appears to us that this decision is contrary to the decision of this court in ranjit khan v. ramdhan singh 2 ind. cas. 859 : 31 a. 482 : 6 a.l.j. 654 in which a large number of cases on the point are discussed.2. we allow the appeal, set aside the decrees of the courts below.....
Judgment:

1. This is a suit for the redemption of three usufructuary mortgages. There were seven simple mortgages on the property each of which provided that it should be redeemed before the usufructuary mortgages were redeemed. The do-fence was that the plaintiff was not entitled to redeem the usufructuary mortgages without redeeming the simple mortgages also. Both the Courts below have held that the stipulation in the simple mortgages amounts to a clog on the right of redemption and that the stipulation cannot be enforced. It appears to us that this decision is contrary to the decision of this Court in Ranjit Khan v. Ramdhan Singh 2 Ind. Cas. 859 : 31 A. 482 : 6 A.L.J. 654 in which a large number of cases on the point are discussed.

2. We allow the appeal, set aside the decrees of the Courts below and remand the case to the first Court to be restored to its original number and to be disposed of according to law. Costs here and heretofore will be costs in the cause. Costs in this Court will include fees on the higher scale.


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