Kishun Prasad Sahu and Others vs Hakim Chaudhari and Others

Miller, C.J.—The plaintiff in this case claimed to redeem a mortgage granted by their predecessors-in-interest, Benga Chaudhuri and others to Goka Chand, the predecessor of the defendants, in the year 1882. It appears that the mortgagors had borrowed a sum of Rs. 339 from the mortgagees at 12 annas per cent. per mensem interest, the property given as security being a house situated at Kasha Buxar. It is not disputed that the plaintiffs are entitled to redeem and the only question which was raised before the trial Court and afterwards on appeal related to the terms upon which the mortgagor is entitled to redeem.

The instrument of mortgage in this case is in somewhat unusual terms. It provides as follows: "Whereas we," that is the mortgagors, "borrowed Rs. 399 of the currency on interest at 12 annas per cent, per mensem in order to pay the money due to Gokul Chand, son of Sheo Shanker Ram Kalwar, resident of the said Kasba Buxar, which interest on the said loan amounts to Rs. 36 annually, as regards payment of the money principal and interest this condition was agreed upon between the parties, that there is a shop bounded as per boundaries given below belonging to us and situated in the said Kasba Buxar." "The said Mahajan" that is the mortgagee, " should, as mortgagee, occupy the said shop from to-day "the word used for mortgagee in that sentence is rehandar." He should set off the rent of the mortgaged shop, Rs. 2 per month, against a portion of the said interest and we the declarants would pay in cash to the said mortgagee every year the sum of Rs. 12 on account of interest left unpaid and due from us out of the said sum of Rs. 36 by taking receipts for the same." Then follows the clause which relates to redemption of the property. "When weshall pay the said sum of Rs. 399 principal at the end of the month of Jeyth in any year, we shall take back this deed from the said creditor." Then follows a provision for payment of the ground rent, chaukidari tax and other repairs of the house which are to be borne by the mortgagors. That is the whole of the operative part of the mortgage in so far as it is material for present purposes. It appears that, although Rs. 2 per month in respect of interest were paid to the mortgagee out of the rent of the mortgaged shop, the mortgagors did not in fact pay the remaining one rupee according to their undertaking and the only question is whether they should now be allowed to redeem without paying the one rupee interest which they undertook by the terms of the mortgage-deed to pay. It is contended on behalf of the respondents who represent the mortgagees in this case that the property was hypothecated not only to secure repayment of the principal sum and the two rupees per cent, per mensem as interest, but also the remaining one rupee per month the interest payable by the mortgagors. It is contended, on the other hand, by the appellants that the clause in the mortgage-deed is specific and provides in terms, that on payment of the Rs. 399 principal in the month of Jeyth in any year then they shall take back the deed, which means that they shall be entitled to redeem. Certain oases have been brought to our notice dealing with various kinds of mortgages where there has been some ambiguity in relation to the question whether the mortgaged property was in fact hypothecated for payment of interest or not. I can quite understand, that in certain cases where an ambiguity does arise the Court may be entitled looking at the whole terms of the mortgage contract, to come to the conclusion that the property was intended So be charged not merely with the principal sum advanced but also with the interest payable on that sum. There can be no doubt, that in cases, for example, where the property is said to be charged with the mortgage-money that may properly be taken to include not; merely the principal sum advanced but the interest payable upon that sum. In other cases where the property is hypothecated for payment of the principal sum and interest in terms merely up to the dun date it may also be inferred that if the property is not redeemed by the due date then it was intended that it should continue to be hypothecated for the payment of interest accruing even after the due date. There may be other cases in which there is a certain amount of ambiguity and one may draw inference from the whole terms of the mortgage deed itself. In the present case, however, it seems to me that the conditions relating to redemption are clearly stated in the contract itself. In the first place, the mortgagees are merely to occupy the mortgaged shop and out of the profits to reimburse themselves for Rs. 2 per month only of the interest, the other rupee being paid by the mortgagors themselves. It is nowhere provide; in the document that the mortgaged property shall be held as security for payment of interest beyond the Rs. 2. Then, when we come to the terms, relating to redemption, it is clearly stated that "when we shall pay the said sum of Rs. 399 principal we shall take back this deed." It seems to me that in the face of that express provision there Is no room for drawing any inference that, it was intended, before redemption should be allowed, not only the Rs. 399 principal should be repaid but also any balance of interest which the mortgagors bad undertaken to pay themselves. The words are quite clear. They refer only to the sum of Rs. 399 principal and nothing more and it seems to me that, in these circumstances, we should be giving a strained construction to those terms of the deed if we were to say that before the mortgagors should be allowed to redeem they should pay not only the Rs. 399 principal which is stipulated therein but also that they should pay the interest, which they had undertaken personally to pay and in respect to which there is nothing in the contract to indicate that the property was charged for payment.

Both the trial Court and the Subordinate Judge on appeal came to the conclusion that the property could not be redeemed without payment of the interest. In my opinion, their decision cannot be supported and this appeal must be allowed with costs to the appellants here and in the Courts below. The decree of the lower appellate Court will be set aside. The sum of Rs. 399 has already been deposited in Court. The appellants are, therefore, entitled to possession of the mortgaged property; on their obtaining possession the respondents will be entitled to take the money out of Court. The plaintiffs are entitled to the profits arising out of the property calculated at Rs. 2 per month from the date of the deposit until delivery of possession.

Kulwant Sahay, J.

I agree.