1. This is an appeal on behalf of the first defendant in a suit to enforce a mortgage security executed by him on the 19th July 1907, for an advance of Rs. 300. It was agreed between the parties that interest would be paid at the rate of 40 arts of paddy or Rs. 100 annually; in other words, that 120 aris of paddy would be paid upon the principal amount each year. It was farther provided that if interest was not paid in kind as stipulated, the value of the paddy would be taken as Rs. 100. There was, however, no time fixed for re-payment in the deed as drawn up; the position, thus, was that the mortgagee could enforce the security whenever he liked and the mortgagor could claim redemption whenever he pleased Fitzgerald's Trustee v. Mellersh (1892) 1 Ch. 385 : 61 L.J.Ch. 231 : 66 L.T. 178 : 40 W.R. 251; Harding v. Tingey (1864) 34 L.J.Ch. 13 : 10 Jur. (N.S.) 872 : 10 : L.T. 323 : 12 W.R. 684. Consequently, after the deed had been executed, a clause was added to the effect that the money would be paid, principal and interest, within one year,' and this was separately signed by the mortgagor. It is not disputed that on the 24th July 1907, the mortgagor tendered to the mortgagee the principal together with the interest which had accrued due up to that date. The mortgagee declined to accept the money whereupon the sum was deposited in Court. On the 15th March 1909, the mortgagee commenced this action and claimed to recover the principal sum together with interest up to the date of suit and pendente lite.
2. The Court of first instance overruled this contention and held that the mortgage had been redeemed by the tender of the principal and interest on the 24th July 1907. Upon appeal, the Subordinate Judge has held that the tender was premature and that the plaintiff is entitled to enforce the security.
3. On behalf of the appellant, the mortgagor, it has been argued that upon a true construction of the last clause in the deed, it was open to the mortgagor to redeem the security on the 24th July 1907. On behalf of the respondent, it has been contended, upon the authority of the cases of Vadju v. Vadju 5 Bom. 22 and Raghubar Dayal v. Budhu Lal 8 A. 95 that the mortgagor was not entitled to redeem before the expiry of one year from the date of the mortgage. It has further been argued that the right of redemption and the right of foreclosure are co-extensive; and in support of this proposition, reliance has been placed upon the observation of Lord Kingsdown in the case of Pran Nath Roy Chowdry v. Rookea Begam 7 M.I.A. 323 at p. 355 and upon the cases of Tirugnana v. Nallatambi 16 M. 486; Husaini Khanam v. Husain Khan 29 A. 471 : A.W.N. (1907) 133 : 4 A.L.J. 375; Sayad Abdul Hak Sardar v. Gulam Jilani 20 B. 677 and Brown v. Cole 14 Sim. 427 : 14 L.J.Ch. 167 : 9 Jur. 290. In our opinion, the view taken by the Subordinate Judge is clearly erroneous and cannot be supported.
4. It need not be disputed that, unless there is an agreement to the contrary, the right of foreclosure and the right of redemption must be deemed co extensive. In each particular instance, therefore, it must be determined, upon the terms of the contract between the parties, whether there is any special provision in the contract which takes the case out of the general rule. No doubt there are observations in the case of Vadju v. Vadju 5 Bom. 22, which may be taken to support the contention of the respondent. But the case of Raghubar v. Budhu Lal 8 A. 95 is clearly distinguishable. There, it is obvious from the judgment, a date had been specifically fixed for redemption and such date was binding equally upon the mortgagor and mortgagee. The case of Brown v. Cole 14 Sim. 427 : 14 L.J.Ch. 167 : 9 Jur. 290 also was obviously a case of this description. Now, in the case before us, the particular covenant upon which both the parties rely is to the effect that the mortgagor shall pay the amount of principal and interest within the term of one year. The mortgagee invites us to treat this covenant as if it provided that the mortgagor was not to pay the amount of principal and interest before the expiry of one year. It is, in our opinion, impossible to construe it in this way. It is fairly clear that this particular clause was inserted for the benefit of the mortgagor so that he might be at liberty to pay the principal with interest before the expiry of one year. Rose Ammal v. Rajarathnamammal 23 M. 33. In fact, the present case falls within the class of cases in which the mortgage is payable before a certain day, and not within the class where a day is fixed for the payment of the debt, In this view, it is clear that this appeal must be allowed, the decree of the Court below set aside and that of the Court of first instance restored with costs both here and in the Court of appeal below.