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Bir Mahamed Rowther Vs. Nagoor Rowther and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in25Ind.Cas.576a
AppellantBir Mahamed Rowther
RespondentNagoor Rowther and anr.
Cases ReferredRose Ammal v. Rajarathnam Ammal
Excerpt:
mortgage - redemption--mortgagor, whether can redeem before expiry of term fixed. - .....be allowed to redeem the mortgage before the expiry of the term mentioned in the mortgage-deed unless there is a contract to the contrary in favour of the mortgagor. there is no evidence of any such contract in this case. the usufructuary mortgagees (plaintiffs) are, therefore, entitled to remain in possession for the seven years' term agreed upon between themselves and the mortgagors and hence, they cannot be redeemed by the appellant (3rd defendant who is a purchaser of the mortgager's right in this suit which was brought before the term of seven years expired.2. this is the only arguable point in this second appeal and as that has' failed, we dismiss the second appeal with costs.
Judgment:

1. We must follow the Privy Council ruling in Bakhtawar Begani v. Husain Khartum 23 Ind. Cas. 355 : 18 C.W.N. 586 : 26 M.L.J 474 : 12 A.L.J. 473 : 19 Cri.L.J. 477 : (1914) M.W.N. 411 : 15 M.L.T. 389 : 16 B.L.R. 344 : 1 L.W. 813 : 36 A. 195 and if there are some observations in Rose Ammal v. Rajarathnam Ammal 23 M. 33 which cannot be reconciled with that ruling, those observations must be held to be over ruled. The effect, of the Privy Council ruling is that the mortgagor cannot be allowed to redeem the mortgage before the expiry of the term mentioned in the mortgage-deed unless there is a contract to the contrary in favour of the mortgagor. There is no evidence of any such contract in this case. The usufructuary mortgagees (plaintiffs) are, therefore, entitled to remain in possession for the seven years' term agreed upon between themselves and the mortgagors and hence, they cannot be redeemed by the appellant (3rd defendant who is a purchaser of the mortgager's right in this suit which was brought before the term of seven years expired.

2. This is the only arguable point in this second appeal and as that has' failed, we dismiss the second appeal with costs.


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