JUDGMENT
1. The suit in the lower Court was one for sale on foot of a hypothecation bond, dated the 20th January 1913. The suit was instituted on 20th December 1919, i.e., after the period of limitation for a money-decree. It is important to state this because Defendants Nos. 3 to 6 who have appealed are apprehensive of a money decree being passed against them though they have no interest in the property in suit. They were rightly sued, because their names appear in the village record. As admitted in the lower Court they have no interest in the property, and as no money-decree can be passed on foot of the bond in suit, there is no substance in the sixth ground of appeal. Mr. Mukhtar Ahmad on behalf of Defendants Nos. 4 and 5 desired to argue that their interest in the property was independent of the interest of the two executants of the bond, Muhammad Said and Zulfiqar Hasnain. That point, however, does not arise in any of the grounds of appeal, so we did not permit him to proceed with that argument.
2. The grounds which have been pressed by the learned Counsel for the Defendants Nos. 1 and 2 who executed the bond were (1) that the interest charged at 2 per cent. per mensem compoundable with six-monthly rests was penal; (2) that consent to this exorbitant interest was obtained by the mortgagee by the exercise of undue influence over the mortgagors; and (3) that the mortgage debt had been paid off by the execution of a sale deed of a portion of the property patti Narendrapur subsequent to the date of the mortgage. We have considered all these pleas, but we find no reason to support them. The interest is certainly not penal, because in default of payment of interest the compound rate is the same. Compound interest is said to be penal when the rate increases in default.
3. Undue influence was pleaded on the ground that the mortgagee had a prior charge on the property and the mortgagors at that time were in great need of money, One of the defendants Zulfiquar Hasnain has deposed that it was not possible for him to borrow money at that time to pay off the decrees on foot of which the property was to be sold. He had, therefore, to submit to the terms imposed by the mortgagee. He did not state that he was influenced by reason of the mortgagee having a prior charge on the property. In fact such charge could not be of any effect in casting undue influence, because it was not being enforced at the time of the transfer. The circumstance of the executants being in great need of money is not sufficient to presume undue influence. It is true that the plaintiffs stupidly tried to make out that the executants themselves forced such an agreement upon them. It appears that what the mortgagees really meant was that even on such favourable terms they were not disposed to advance the money, and it was only at the entreaty of the mortgagors that they did advance the money. The mortgagees may have taken advantage of the need of the persons borrowing money from them, but that by itself cannot support the plea of undue influence. The learned Judge of the lower Court, who has written a judgment of considerable merit, has fully dealt with this question and examined the law on the subject. It is sufficient here to refer again to the Privy Council ruling in the case of Aziz Khan v. Duni Chand [1918] 101 P.R. (1918) quoted by the lower Court. There is also a ruling of their Lordships of the Privy Council subsequent to the date of the judgment of the lower Court Raghunath Prasad Sahu v. Sarju Parsad Sahu A.I.R. 1924 P.C. 60. It was laid down there that
to attract the operation of the provisions of Section 16 of the Indian Contract Act it is necessary, in the first instance, to prove that one of the parties was in a position to dominate the will of the other. Mere unconscionableness of the bargain is not the first thing to be considered. The exaction of excessive and usurious interest, even though there may be ample security, does not by itself raise any presumption of undue influence unless it is first established that the lender was in position to dominate the borrower’s will.
4. In that case also the rate of interest allowed by their Lordships was 2 per cent. per mensem compoundable yearly. In the present case there is no evidence that the mortgagee was in a position to dominate the will of the mortgagors.
5. The argument that the sale of Patti Narendrapur wiped out the mortgage fails completely, because there was a suit for pre-emption subsequently, and in that suit the sale consideration for the transfer was held to be Rs. 2,700. The plea here was that the consideration was in reality Rs. 7,200, but was reduced in order to avoid a large proportion of the stamp duty. Such action on the part of the mortgagee would be so foolish as to be incredible, because the property was subject to pre-emption, and in such a case the price would be inflated and not reduced. The mortgage-bond was not taken back by the mortgagors as would have been the case if the mortgage had been wiped out. The lower Court has also pointed out the valuation of this property at Rs. 7,200 would be exorbitant and such as no purchaser would pay. We hold that the sale transaction was independent of the mortgage.
6. In the result we dismiss this appeal with costs which shall include fees here on the higher scale.
