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Madras High Court
Bir Mahamed Rowther vs Nagoor Rowther And Anr. on 27 July, 1914
Equivalent citations: 25 Ind Cas 576 a
Bench: S Aiyar, Napier


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 C.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 (P.C.) 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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