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Allahabad High Court
Umrao Singh And Ors. vs Sultan Singh And Anr. on 25 February, 1929
Equivalent citations: AIR 1929 All 384


1. This is a defendants appeal arising out of a suit for redemption of a mortgage dated 17th February 1909. The defendants contested the suit on two grounds only. Firstly, that there was a previous mortgage of 11th April 1865 without redeeming which, the plaintiffs were not entitled to take possession of the property; secondly, that under a clause in the mortgage deed the plaintiffs were bound to pay all the arrears remaining outstanding against the tenant before redemption. The bond dated 11th April 1865 is printed at p. 15. No specific property is expressly mentioned there in but it is recited that the mortgagor would not have the right to redeem a property previously mortgaged to the mortgagee until the amount due under this bond was paid with interest. Even the date of the previous mortgage deed is not mentioned in the deed. It is impossible therefore to trace the property. All we know is that there was some share of the mortgagor in mauza Hasan Alipur Bisai but we do not know the extent of that share nor is it clear whether the whole share of the mortgagor was mortgaged or only a part of it. The deed is described as Mashrutul rahan but that by itself does not operate to create a charge on any specific property. The defendants therefore cannot be allowed to insist on the payment of this amount after the lapse of so many years. Furthermore, we find that the condition was that the mortgagor would not be allowed to redeem the earlier mortgage without paying the money due on the bond of 1865. Assuming for the sake of argument that the reference in this bond was a reference to the earlier deed of 1861 we find that was paid off by the execution of the fresh deed in 1867 and at that time the mortgagees on their own showing did not insist on the payment of the money due on the bond of 1865. But as a matter of fact the recital in the mortgage deed of 1865 goes to suggest that the amount due on the mortgage-deed which was tacked on to that of 1861 and which amounted to Rs. 200 was also paid off by that deed. If the assumption made by the learned advocate for the appellants is correct and the reference to the unnamed mortgage is that to the deed of 1861 it would follow that the mortgage deed of 1865 (said to have been tacked on to that of 1861) was also paid off by the deed of 1867. In any case the defendants are not entitled to claim the money due on this deed.

2. As regards the right to claim the outstanding arrears if any, it is quite clear that under Section 67, sub-CL (g), T.P. Act, it was the duty of the mortgagees who took possession to keep clear, full and accurate accounts of all the amounts received by them as mortgagees. It is admitted by their witnesses that they kept regular account books but they have chosen not to produce them. The Court below has accordingly presumed against them that if they were produced it would have gone against the defendant’s case. Mere oral evidence that some amounts of the arrear remained out standing would be wholly inconclusive in the absence of the regular account books particularly as the entries made in the patwari’s siyaha cannot be said to be necessarily complete or exhaustive. In our opinion the view taken by the Court below was correct. The appeal has no force. It is dismissed with costs.

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