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Makbul Ali Vs. Ali Ahmad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1913)ILR40Cal514
AppellantMakbul Ali
RespondentAli Ahmad
Cases ReferredKuttiumma v. Madhava Menon
Excerpt:
interest - usufructuary mortgage--interest not stipulated for--charge in the nature of mortgage must he in writing and registered. - .....in writing and registered and cannot be raised, by implication. in that case the usufructuary mortgagee leased the mortgage lands to the mortgagor for one year, and a registered, deed executed, by the mortgagor made a charge upon the land for arrears of rent, which makes the madras case a much stronger case than this, and the mortgagee paid no rent but held over after the lapse of the period; it was however held that the rent was not recoverable as interest due on the mortgage. it is true that this was a suit by the mortgagee for the mortgage money and for arrears of rent, and in the issue the courts gave the plaintiff a decree for three years' rent which was not barred, by limitation. but it is impossible for us even though we may hold that the defendant is equitably entitled to.....
Judgment:

Holmwood and Chapman, JJ.

1. This second appeal arises out of a suit for redemption brought by the mortgagor plaintiff against the mortgagee defendant. The plaintiff mortgaged his property by way of usufructuary mortgage to the defendant, and a month afterwards obtained a lease from him for one year at the rental of 8 rupees a year. There was no stipulation in the usufructuary mortgage bond for any interest; and although the lease recites that there had been a mortgage there is no charge made on the property by the lease for the rent annually due upon it. The Courts below have, therefore, found that the redemption may be had on payment of the principal only, and have allowed no interest.

2. The defendant appeals on the ground that the plaintiff is not entitled to redeem without, payment of principal and interest. He argues this point in three ways: first, he maintains that the decree should be one for account 5 secondly, that on a construction of both the documents the transaction was a single one and the plaintiff is bound, to pay interest at the rate set out as rental in tire lease; and, thirdly, that in any case a Court of equity should give the defendant some usufruct or interest in the circumstances of this case. The ruling in Imdad Hasan Khan v. Badri Prasad (1898) I.L.R. 20 All. 401 is relied upon, as it was relied upon before, the learned Subordinate Judge, and the ruling in Kullyan Dass v. Shea Nundun Purshad Singh (1872) 18 W. R. 65 is also cited before us as authority that an account should be taken.

3. The learned Subordinate Judge has distinguished the Allahabad, case from this case, and we think rightly. In that case the two documents referred to each other and there was a clear stipulation that the rent in the lease should be taken as interest upon the mortgage. In this case there is no such express reference and no such stipulation and the case seems to us to be precisely on all fours in this respect with the case of Kuttiumma v. Madhava Menon : (1901)11MLJ186 . Two very important principles of law which govern this case were laid down in that case by Shephard and Boddam JJ. The first is that where no interest is stipulated for in a mortgage bond no interest is recoverable. The second is that a charge in the nature of mortgage whether for principal or interest must be expressed in writing and registered and cannot be raised, by implication. In that case the usufructuary mortgagee leased the mortgage lands to the mortgagor for one year, and a registered, deed executed, by the mortgagor made a charge upon the land for arrears of rent, which makes the Madras case a much stronger case than this, and the mortgagee paid no rent but held over after the lapse of the period; it was however held that the rent was not recoverable as interest due on the mortgage. It is true that this was a suit by the mortgagee for the mortgage money and for arrears of rent, and in the issue the Courts gave the plaintiff a decree for three years' rent which was not barred, by limitation. But it is impossible for us even though we may hold that the defendant is equitably entitled to such rent to give it to him in this suit. He must bring a, suit properly framed for the purpose, in order to have; it determined, what rent, if any, he can recover under the terms of the lease. It is clear that he cannot recover any rent as interest on the mortgage and that he is subject to the ordinary rules of limitation as regards the amount of rent recoverable. It could not therefore be within the scope of this proceeding to order an account to be taken and the equities between the parties decided.

4. For these reasons, we think that the appeal fails and must be dismissed with costs.


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