1. This is a Letters Patent appeal by the plaintiffs against the decree of a learned single Judge of this Court who has ordered that the plaintiffs are entitled to redeem a usufructuary mortgage of 17th February, 1877, on payment of the amount due under a deed of 18th March. 1880.
2. The contention for the plaintiff is that he is entitled to redeem the usufructuary mortgage of 1877 without payment of any sum due under the deed of 18th March. 1880. The appellant relies on the case of Kesar Kunwar v. Kashi Ram 30 Ind. Cas. 777 : 37 A. 634 : 13 A.L.J. 889, a ruling of 1315. To a certain extent the appellants' case might receive support from a Full Bench rulingin S.A. No. 850 of 1926 Lallu Singh v. Ram Nandan : AIR1930All136 , decided on 22nd November, 1929, in which it was held that where the second document did not create any charge or mortgage on the property, the usufructuary mortgagor may redeem the prior usufructuary mortgage without paying the debt due on the second document. But in the present case, we are of opinion that the document of 18th March, 1880, does amount to a simple mortgage-deed because the language is as follows:
Therefore, in lieu of this Rs. 750 also, we hypothecate the same property and declare that when we shall repay Rs. 899 zar-I-peshgi on account of the mortgage by conditional sale, we shall also pay this Rs. 750 with interest at the rate of eight annas per cent.
3. Because of the language used, 'we hypothecate the same property' we consider that this deed of 1880 does amount to a simple mortgage. Accordingly the present case differs from the Full Bench case decided in Lallu Singh v. Ram Nandan : AIR1930All136 , We are unable to distinguish the present case from the Privy Council ruling reported in Ramarayanimgar v. Maharaja of Venkatagiri , In that ruling it is laid down at page 190 Page of 50 M.-[Ed.] as follows:
The section which the appellant's Counsel urges as being applicable to the facts of this case is Section 61 of the Transfer of Property Act, which enacts by implication that a mortgagor seeking to redeem shall not be entitled to do so without paying any money that may be due under a separate mortgage or charge, if the latter relates to the same property. Their Lordships are of opinion that these contentions on behalf of the appellant must prevail.
4. It was argued by the learned Counsel for the appellant that this Privy Council ruling merely applied to the particular facts of that case. We do not consider that this argument is correct and it appears to us that their Lordships of the Privy Council were, in the passage quoted above, laying down a general rule which is applicable to the facts of the case at present before us.
5. Accordingly, we consider that this Letters Patent Appeal should be dismissed. We have, however, noticed a clerical error in the judgment of the learned single Judge of this Court. That is he has held that the plaintiff should obtain a decree conditional on his paying into Court the amount due under the deed of 1880. But the defendants in this case only represent the mortgagee interest in three-fourths of the amount due under that deed. Accordingly we correct the decree of the learned single Judge of this Court and direct that the plaintiffs Should obtain possession on payment of one-half of the principal and interest due under the bond of 18th March, 1880, to defendants first party and one-fourth of that principal and interest to defendants third party. We allow the plaintiffs six months from the date of our decree to make this payment. The decree will be in the usual form for a decree of redemption. The respondents will receive their costs of this appeal in this Court from the plaintiff-appellants.
6. I entirely agree with the judgment of my learned brother and in the order he has proposed. I wish to add just a few words.
7. A majority of the Judges in the Full Bench case to which reference has been made, viz, Lallu Singh v. Ram Nandan : AIR1930All136 , laid down that where a subsequent bond, executed after the creation of a usufructuary mortgage, does not create any charge on the property, the mere fact that there is a personal covenant in the subsequent bond to pay a certain amount of money with the mortgage amount pecured by the earlier deed, will not prevent the mortgagor from redeeming the mortgage without paying the amount that may be due on the subsequent bond. In that case it was held on the facts that no charge or mortgage had been created on the property by the subsequent document, In that case, to which I happened to be a party, King, J., held that the Privy Council case of Ramarayanimgar v. Maharaja of Venkatagiri was an authority for the proposition that where the sub-sequent bond created a charge or simple mortgage on the property mortgaged by an earlier document, there could be no redemption of the property till the amount due on both the documents had been paid. I left the point open in my judgment, in the Full Bench case, for the simple reason that on the facts, the question did not arise for determination.
8. In this particular case we have got the following facts. There was an earlier mortgage by conditional sale dated 1877. About three years later, in 1880 the mortgagors borrowed a sum of Rs. 750 and by the clearest possible terms directed that this sum of Rs. 750 with interest at six per cent, per annum should be a charge on the property already mortgaged. The property is zemindari and there was, therefore, no bar to the creation of a subsequent mortgage or charge. In view of the expression of opinion contained in the Privy Council case quoted above in Ramarayanimgar v. Maharaja of Venkatagiri , there can be no doubt that the plaintiff-appellants are not entitled to redeem till they pay the amount secured by the subsequent mortgage also.