1. The facts out of which this appeal arises are as follows: The plaintiffs executed on the 3rd of July 1912 a usufructuary mortgage of some of their sir land in favour of the defendant for Rs. 100. On the same date they executed an agreement to the effect that if they did not give possession to the defendant or if the defendant having obtained possession, lost it they would re-pay the principal mortgage-money, plus interest at the rate of 2 per cent, per mensem from the date of mortgage. As a matter of fact the plaintiffs remained in possession throughout and still are in possession. It appears that when the defendant applied for mutation of names he was resisted by the plaintiffs and mutation was not effected. After that the defendant seems to have done nothing. He did not apply under Section 36 of the Land Revenue Act to have the rent assessed, assuming that he could have done so.
2. The plaintiffs brought this suit to redeem the mortgage on payment of Rs. 100 only. The suit was filed on the 30th of June 1920, that is to say, they had had the use of defendant's money for about 8 years and had paid no rent or interest to the defendant. The defendant claimed that they were not entitled to redeem unless they paid interest according to the agreement already mentioned.
3. The Trial Court decreed the plaintiffs' claim, holding that the defendant was not entitled to physical possession of the mortgaged property as it was the plaintiffs' sir and that the defendant could only have got the rent assessed, and as he never applied to have the rent assessed, the fault was his.
4. On appeal the learned District Judge held that the respondents, that is to say, the plaintiffs, were bound by their contract to pay interest and as they had failed admittedly to put the appellant in possession of the mortgaged land and had committed a breach of their contract, he modified the decree of the Court below by ordering redemption on the payment of Rs. 100, plus interest at the rate of 2 per cent. per mensem from the date of mortgage to the date of payment.
5. The plaintiffs come here in appeal and argue that this case is really on all fours with the case reported in Mir Dad Khan v. Ramzan Khan 44 Ind. Cas. 988 : 16 A.L.J. 329 : 40 A. 449, which is based on a recent decision of their lordships of the Privy Council in Moti Chand v. Ikram Ullah Khan 39 Ind. Cas. 454 : 39 A. 173 : 5 L.W. 388. 15 A.L.J. 150 : 21 M.L.T. 267 : 32 M.L.J. 383 : 21 C.W.N. 616 : 19 Bom. L.R. 433 : 26 C.L.J. 24 : (1917) M.W.N. 453 : 44 I.A. 54 (PC.)The facts of that case and this are very similar but there is this great difference between the two cases. In that case the transferee was suing to enforce an illegal covenant in the contract; here the plaintiffs sue to redeem and wish to avoid a term of their contract which the defendant could not have enforced in law but which they could have themselves carried oat if they had been so minded. As pointed out in the judgment of Mr. Justice Piggott in the case of Mir Dad Khan v. Ramzan Khan 44 Ind. Cas. 988 : 16 A.L.J. 329 : 40 A. 449, 'An ex-proprietary tenant (which the plaintiffs became on execution of this usufructuary mortgage) with full knowledge of that fact and of the rights preserved to him by the Statute, deliberately chooses, as a separate transaction, to relinquish his ex-proprietary tenancy into the hands of the new proprietor, or of the mortgagee in possession, then the law cannot go further in the way of protecting a reckless and imprudent man against the consequences of his own acts.' In the same case Mr. Justice Walsh adopts Dr. Agarwala's comment on the subject in the words, 'It comes to this that though a proprietor can, in fact, give up his ex-proprietary rights when they accrue, by not availing himself of them, he cannot bind himself by an express stipulation to that effect in a deed of transfer of the property or the like'.
6. It seems to me it would be highly inequitable to hold that the plaintiffs, having agreed to give up possession, although they knew probably that that agreement could not be enforced by the mortgagee, should be allowed to redeem the mortgage without paying the interest which they had covenanted to pay in case they did not give possession. They have had the use of the defendant's money for 8 years and paid him nothing.
7. In my opinion the decision of the Court below is right. I accordingly dismiss the appeal with costs.