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Jamir Howladar-principal Vs. Arabjan Bibi and on Her Death Some of Her Heirs and Legal Representatives, Adeladdi Howladas and ors. and Protap Chandra Ghose and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in65Ind.Cas.273
AppellantJamir Howladar-principal
RespondentArabjan Bibi and on Her Death Some of Her Heirs and Legal Representatives, Adeladdi Howladas and ors
Cases Referred and Chandu v. Koaja Poojari
Excerpt:
mortgage - redemption, if and when can be effected before expiry of term stated in bond--redemption and foreclosure, general principle as to--transfer of property act (iv of 1882), sections 60 and 62. - .....for redemption 'within the time stipulated' refers to joista 1327; in other words, that the last date of joista 1327 was the date on which the mortgagor was to re pay the money. but this is expressly provided for in the next clause, namely, the clause where it is stated that the redemption of the principal amount would take place in the month of joista 1327 and on failure the deed of conditional sale would be regarded as a deed of absolute sale. it was unnecessary to provide for the same thing again in the previous clause; and that clause, therefore, we think, contained an agreement under which the mortgagor was entitled to redeem the property before the expiry of eight years. there is nothing illegal or unusual for a debtor to come to an agreement with the creditor that he will have.....
Judgment:

1. This appeal arises out of a suit for redemption of mortgage, and the question involved in the appeal is whether the suit was premature. The mortgage bond is dated 18th Joista 1319. The contention of the defendants is that the mortgage was for a term of eight years, from Asar 1319 to Joista 1327, and that that being so, the plaintiff (an assignee of the mortgagor) had no right to maintain the suit before the expiry of Joista 1327. The general principle as to redemption and foreclosure is that in the absence of any stipulation, express or implied, the right to redeem and the right to foreclose are co extensive and this principle is embodied in Sections 60 and 62 of the Transfer of Property Act. As pointed out by the Judicial Committee in the recent case of Bakhtawar Begam v. Husaini Khanam 23 Ind. Cas.355 : 18 C.W.N. 586 : 26 M.L.J. 474 : 12 A.L.J. 473 : 36 A. 195 : 19 C.L.J. 477 : (1914) M.W.N. 411 : 15 M.L.T. 389 : 16 Bom. L.R. 344 : 1 L.W. 813 : 41 I.A. 84 (P.C.), 'ordinarily in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period. But there is nothing in law to prevent the parties from making a provision that the mortgagor may discharge the debt within the specified period and take back the property. Such a provision is usually to the advantage of the mortgagor.' The question, therefore, is whether in the present case, there is such a provision. In the first paragraph of the mortgage-bond it is stated that the properties are mortgaged by way of kat for a term of eight years, from Asar 1319 to Joista 1327. If there was nothing else to qualify the words, the mortgagor could not redeem before the expiry of the eight years any more than the mortgagee could foreclose before the expiry of that period. Later on, however, it provides: 'if I re-pay your debt within the time stipulated above (mead modhyai) you shall give up the lands in my khas possession.' We think that this gives the mortgagor a right to redeem before the expiry of eight years. Further on, the bond states: 'I wish to re-pay your principal amount within the said month of Joista 1327 B.S. (Joista modhya). If I do not pay off the whole amount within the said time, this deed of conditional sale shall be regarded as deed of absolute sale on the expiry of the term, that is, from fired day of Asar 1327.'

2. It is contended on behalf of the appellant that the clause for redemption 'within the time stipulated' refers to Joista 1327; in other words, that the last date of Joista 1327 was the date on which the mortgagor was to re pay the money. But this is expressly provided for in the next clause, namely, the clause where it is stated that the redemption of the principal amount would take place in the month of Joista 1327 and on failure the deed of conditional sale would be regarded as a deed of absolute sale. It was unnecessary to provide for the same thing again in the previous clause; and that clause, therefore, we think, contained an agreement under which the mortgagor was entitled to redeem the property before the expiry of eight years. There is nothing illegal or unusual for a debtor to come to an agreement with the creditor that he will have the right to re-pay the money before a certain date, although the mortgagee would not be entitled to foreclose him before that date, We are referred to certain case to show that the word 'in' or 'within' a specified period does not give a right to the mortgagor to redeem the mortgage before the expiry of that period. In the case of Vadju v. Vadju 5 B. 22 : 3 Ind. Dec. (N. s.) 16 the word 'within' was not considered a sufficient indication of an express agreement to entitle the mortgagor to redeem. But there the only stipulation was that the mortgagor was to pay the debt with interest within ten years, and the learned Judges were of opinion that it was not a sufficient indication of the intention of the parties that the ordinary principle should not prevail with respect to the mortgagor and that the mortgagor might redeem in a less period than 10 years. In the present case, there is an express stipulation that the mortgagor will be entitled to pay off the debt within the period of eight years 'mead modhyai.' The further provision in the document in the present case that the principal amount will be re paid in Joista 1327, as stated above, merely states the latest date of payment.

3. The case of Purna Chandra Sarma v. Peary Mohan Pal 15 Ind. Cas. 287 : 17 C.W.N. 149 : 39 C was relied upon, on behalf of the respondents. It is true that there was no time fixed for redemption in the deed as drawn up in that case, but there was a clause added (and separately signed by the mortgagor after the deed had been executed) that the money would be paid, principal and interest, 'within' one year. The learned Judges were of opinion that the case fell within the class of cases in which the mortgage is payable before a certain date, and not within the class where a day is fixed for the payment of the debt, and that it was open to the mortgagor to redeem within one year of the taking of the loan. See also the cases of Rose Ammal v. Ramarathnam 23 M. 33 : 8 Ind. Dec. (N.S.) 418 and Chandu v. Koaja Poojari 30 Ind. Cas. 370 : 29 M.L.J. 86.

4. As we have already said although the general principle is well-settled, the question in each case is whether upon the terms of the contract between the parties the intention was such as to give the mortgagor a right to redeem before the expiry of the latest date fixed for the payment. We are of opinion, having regard to the terms of the document in this case, that the view taken by the learned Subordinate Judge is correct, namely, that the plaintiff had a right to redeem before the expiry of eight years.

5. The next question is whether the defendants are entitled to claim interest because two of the plots covered by the mortgage were in the possession of tenants. The mortgage-bond provides that if the mortgagee is dispossessed from the mortgaged property, the mortgagor was to pay interest on the mortgage-debt at 2 per cent. per mensem. It appears that two of the plots of land were let out to tenants at the date of the mortgage. Whether the rent was payable by them in money or in kind, does not appear from the judgment. Whatever it was, the plaintiff was entitled to the same possession as the mortgagor had and was entitled to the rent which was stipulated to be paid by the tenants to the mortgagor. There is nothing to show that the mortgagees were deprived of such rent by the mortgagor, and the Courts below have found that the mortgagees had full knowledge of the fact that these plots of land were let out to tenants when they took the mortgage. It has also been found that there was no dispossession of the mortgagees by the mortgagor. In the circumstances, we do not think that the defendants were entitled to any interest.

6. The appeal is dismissed with costs.


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