Tika Ram vs Ram Bharosa And Suraj Prasad And … on 21 February, 1929

Allahabad High Court
Tika Ram vs Ram Bharosa And Suraj Prasad And … on 21 February, 1929
Equivalent citations: 117 Ind Cas 819
Author: Dalal
Bench: Dalal


JUDGMENT

Dalal, J.

1. The opinion of the two Subordinate Courts is, in my opinion, wrong. The plaintiff mortgaged his property on the 2nd of January, 1926, and the stipulation was that the money would be paid on promise within four years. This clause does not stand by itself as the mortgagee bound himself not to sue for redemption within the period of four years. The lower Appellate Court has written a judgment which I fail to understand. He says that the stipulation was that the money was to be paid within four years. The deed, however, does not go on to say what the penalty would be if this was not done and whether the mortgagor’s right to redeem would be barred if he did not pay within that time. It was argued by the learned Counsel for the respondent that if payment was not made within that time the mortgagee would be entitled to sue for sale on foot of his simple mortgage-bond. This is not a privilege which a mortgagee gets by the kindness of the mortgagor, but that is the statutory right of the mortgagee. When the mortgages is bound not to sue within four years of the morgage there must be a definite and clear condition in the deed to prove that the mortgagee consented that the mortgagor was at liberty to sue for redemption within that time. This point, was decided as far back as 1880, by a Bench of two Judges in Vadju v. Vadju 5 B. 22. The Chief Justice Sir Michael Westropp, a great authority, laid down the principle that in the absence of any stipulation express or implied to the contrary, the right to redeem and the right to foreclose must be regarded as co-extensive. This principle was followed by a Bench of two Judges of this Court in Raghubar Dayal v. Budhu Lal 8 A. 95 : A.W.N. (1886) 13. It may be noted that in this Allahabad case the mortgage was simple as in the case at present before the Court. The same principle was followed more recently by another Bench of two Judges of this Court in Shiam Lal v. Jagdamba Prasad 108 Ind. Cas. 561 : 25 A.L.J. 1051 : A.I.R. 1928 All. 131. Counsel for the respondent quoted a Bench ruling of this Oourt in Chaturbhuj v. Raghubar Dial A.W.N. (1901) 36. It is curious that the learned Judges in that case distinguished the ruling in the case of Raghubar Dayal v. Budhu Lal 8 A. 95 : A.W.N. (1886) 13 on the ground that the document in Raghubar Dayal’s case 8 A. 95 : A.W.N. (1886) 13 was a possessory mortgage. There cannot be the slightest doubt if the facts of this case are read that the mortgage was a simple one. Moreover, there does not appear to have been any covenant in the deed in the case of Chaturbhuj that the mortgagee was prevented from bringing a suit for sale for a certain number of years. I hold that the present suit was premature. I set aside the decrees of the two Subordinate Courts and dismiss the plaintiff’s suit with costs in all the Courts.

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