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Bhagwati Singh and ors. Vs. Sarup Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.851
AppellantBhagwati Singh and ors.
RespondentSarup Singh and ors.
Cases ReferredSahabir Prashad v. Durbijii Rai
Excerpt:
construction of deed - band--simple mortgage--charge--limitation at (ix of 1908), section 31, schedule i, article 132. - .....pay this money with interest, i shall not pay the mortgage- money.... when i pay, i shall pay the mortgage-money in a lump sum and redeem the fields.... on these conditions, i have written this dastawez makfali.'2. i have been referred to a number of rulings on the construction of different deeds but it appears to me that rulings on the construction of deeds couched in different languages are of very little use in a case of this kind. the rulings referred to are chiefly useful as showing that it has teen for many years understood that certain words are used to denote a mortgage or a charge. it appears to that the use of the words 'dastiwez mikfnlir probably indicates an intention to make either a mortgage or a charge. but taking all the terms of the document together, i am unable to.....
Judgment:

Chamier, J.

1. This was a suit by the appellants noon a document executed in favour of their ancestor, Sheo Mangal Singh, by the first respondent, Sarup Singh, on September 20th, 1887. The appellants contended that the document was a simple mortgage and they claimed a decree for sale of certain land in two villages. The suit was resisted by the respondents on the ground that the document effected neither a mortgage nor a charge. The Munsif hold that it effected either a mortgage or a charge and he gave the appellants a decree for sale of a part of the property, the rest of the property having passed into the hands of a purchaser for value without notice of the document in question. On appeal, the District Judge held that the document effected neither a mortgage nor a charge and he dismissed the suit. Before stating the terms of the document in question, it is necessary to point out that in 1880, the executant of the document had made an usufructuary mortgage of the land now sought to be sold in favour of the ancestor of the appellant sand placed him in possession and the mortgagee was in possession at the date of the document no win question. This document, after reciting that the executant had taken Bs. 49 from Sheo Mangal Singh-, contains a promise to repay the money with interest on or before June 23rd, 1883. Then follows this provision: ' If I do not pay on due date, then when I come to redeem the land mortgaged in Mouzas Ramnagar and Mohinidpore, I shall pay this money with interest. Until I pay this money with interest, I shall not pay the mortgage- money.... When I pay, I shall pay the mortgage-money in a lump sum and redeem the fields.... On these conditions, I have written this dastawez makfali.'

2. I have been referred to a number of rulings on the construction of different deeds but it appears to me that rulings on the construction of deeds couched in different languages are of very little use in a case of this kind. The rulings referred to are chiefly useful as showing that it has teen for many years understood that certain words are used to denote a mortgage or a charge. It appears to that the use of the words 'dastiwez mikfnlir probably indicates an intention to make either a mortgage or a charge. But taking all the terms of the document together, I am unable to hold that it amounts to a mortgage. If it is a mortgage at all, it must be a simple mortgage. It seems to me it is not a simple mortgage for there is no express or implied agreement that in any event the creditor shall be entitled to bring the property to sale. On the contrary, the provision restricting the right to redeem the usufructuary mortgage upon payment of the amount of this document indicates that a sale was not contemplated. Nor is it likely that the executant of this document would have agreed that the equity of redemption in the mortgaged property should be liable to had sold at the end of one year in case the money was not paid. After the passages set out above, there is a passage in which it is agreed that if the money is not paid, the creditor shall be entitled to recover the money from the executant any from his moveable and immoveable property. If a mortgage had been intended, I should have expected to find this clause giving the creditor a right to sell some specific property. Bat it does nothing of the kind. In my opinion, this document is not a mortgage. It may have effected a charge. But if so, the Bait is barred by limitation, for the cause of action accrued as long ago as 1888 and the present suit was not brought till 1910. The relevant Article of the Schedule to the Limitation Act would be Article 132 and suits governed by that Article are not entitled to the benefit of Section 31 of the Limitation Act of 1908. And there. possible view suggested by the decision in Sahabir Prashad v. Durbijii Rai 8 A.L.J. 233 : 9 Ind. Cas. 482 is that the appellants may have a right of suit hereafter if the usufructuary mortgage is redeemed and the money due on this document is not paid. I am of opinion that the present suit was rightly dismissed by the lower Appellate Court. The appeal fails and is dismissed with costs including fees 'on the higher scale.


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