Mt. Jugesri Kuer vs Aftab Chand

Kulwant Sahay, J.

1 This is an appeal by the plaintiff against the decree of the Additional Subordinate Judge of Saran, reversing the decree of the Munsif and dismissing the plaintiff''s suit.

The suit was for recovery of possession of two bighas of land in mouza Deyalpur, or, in the alternative, for recovery of money due under three mortgage bonds executed by Padarath Lal, the predecessor-in-title of the defendant, in favour of Manharan Lal, the predecessor-in-title of the plaintiff. The first bond was dated 15th February 1888. It was a usufructuary mortgage in respect of two bighas of land for the principal sum of Rs. 125 and the mortgagee was to retain possession of the land until repayment of the mortgage money and to appropriate the usufruct in lieu of interest. The second bond was dated 11th July 1892, and was for a sum of Rs. 41 bearing interest at 1 per cent. per month. The same two bighas was mortgaged in this bond and the due date for payment was fixed as the 30th of Chait 1301. There was, however, a further stipulation that, if the mortgage money was not paid by 30th of Chait 1301, the mortgagor will pay it with the money covered by the first mortgage of February 1888. The third bond was dated 1st August 1892 and was for a sum of Rs. 35 carrying interest at 1frac12; per cent. per month. The property mortgaged under the third bond was the two bighas mortgaged under the first and the second bonds and an additional 15 kathas of land. The due date was 30th Jaith 1300 and it was further stipulated that, if the mortgage money was not paid on that date, it will be paid along with the money covered by the second bond of July 1892.

The mortgagor Padarath Lal sold the mortgaged property to Mahadeo Lal under a deed of sale, dated 6th October 1920, and the money covered by the three mortgage bonds in favour of Manharan Lal was left in deposit with Mahadeo Lal for payment to the mortgagee. Mahadeo Lal, however, did not pay the mortgage money, and the plaintiff''s predecessor-in-title continued in possession. The interest of Mahadeo Lal was sold in execution of a money decree and was purchased by the defendant on 23rd March 1918. The plaintiff''s case is that the defendant deposited the sum of Rs. 125 covered by the first mortgage u/s 83, T.P. Act, but no notice of the deposit was given to her and that subsequently the defendant dispossessed her from the two bighas on 15th Asarh 1325. The plaintiff accordingly instituted the present suit either for recovery of possession with mesne profits of the two bighas, or for recovery of the money covered by the three bonds.

The defence was that the money covered by the first bond had been deposited in Court and the defendant was entitled to take possession of the mortgaged property. As regards the other two bonds, it was contended that the claim under them had become barred by limitation, and the plaintiff was not entitled to recover the money covered by those two bonds.

The learned Munsif held that under the terms of the bonds the plaintiff was entitled to recover the amount covered by all the three bonds before the defendant could redeem the mortgage and take possession of the mortgaged property. He found that the plaintiff was in possession of the 15 kathas additional land mortgaged under the third bond as the representative of the mortgagor. He made a decree in favour of the plaintiff for recovery of a sum of Rs. 565-7-0 which he found was the proper sum recoverable by sale of the two bighas of which the defendant had taken possession, and he made a mortgage decree for sale of the two bighas in default of payment of Rs. 565-7-0.

On appeal the learned Additional Subordinate Judge has set aside the decree on two grounds: first, he has held that the stipulation in the second bond, that in the event of non-payment on the due date the mortgagor will pay the money before redeeming the first mortgage, was a clog on the equity of redemption and was not enforceable in law. He found that the claim under the second and the third bonds had become barred by limitation, and the money deposited by the defendant was sufficient to redeem the mortgage covered by the first bond. He accordingly dismissed the plaintiff''s suit.

In this second appeal it is contended that the learned Subordinate Judge was wrong in holding that the terms of the second and the third bonds did in any way amount to a fetter or clog on the equity of redemption and that the claims under the second and the third bonds were not barred by limitation. The determination of the question whether there was any fetter or clog cast on the equity of redemption would depend on the construction of the second bond. The due date for payment of the bond was the 30th of Chait 1301; and then it was provided as follows:

If I fail to pay off the amount covered by the mortgage bond on the due date whenever I shall pay the zarpeshgi money referred to above I shall first pay the amount covered by the mortgage bond and after that I shall pay the zarpeshgi money.

The real effect of this stipulation in the second bond was that there was a further advance of a sum of Rs. 41 and the property mortgaged under the first bond remained mortgaged under the second bond also. There was nothing in the terms of the second bond which would amount to a clog on the equity of redemption. It was held by the Privy Council in Shankar Din v. Gokul Prasad [1912] 34 All. 620, that there was nothing in law to prevent the parties to a mortgage from coming to a subsequent arrangement qualifying the right of redemption. The effect of the second bond was to extend the terms of the first bond and to add to the terms of the first usufructuary mortgage by adding a sum of Rs. 41 with interest thereon as the mortgage money which the mortgagor was bound to pay before he could redeem the mortgage.

I am, therefore, of opinion, that there was nothing in the second bond which would operate as a clog on the equity of redemption and would invalidate the terms thereof.

As regards the finding of the learned Subordinate Judge that the claim under the second and the third bonds was barred by limitation, it is clear that having regard to the terms thereof the mortgagee was not entitled to bring a suit upon those two bonds. He could only retain possession of the mortgaged property so long as the mortgaged money was not repaid. The mortgagor was, however, bound to pay the money covered by all the three bonds before he could take possession of the property. As under the terms of the bonds the plaintiff could not bring a suit upon those two bonds, it is clear that the claim under those bonds was not barred by limitation. The right to bring a suit upon the bonds arose to the plaintiff only when she was dispossessed by the defendant and the suit was brought within the period of limitation from that date.

The learned advocate for the respondent has referred to a decision of the Allahabad High Court in Sheo Shankar v. Parma Mahton [1904] 26 All. 559. This case, no doubt, supports the contention of the respondent. In that case after the execution of a usufructuary mortgage the mortgagor executed a bond which, in addition to the usual stipulation for repayment of the money secured thereby, contained a covenant similar to the one contained in the second bond in the present suit to the effect that the mortgaged property should not be redeemed until the principal money and the interest due under the bond had been paid, and it was held that such a provision was a clog or fetter on redemption placing in the way of the mortgagor a bar to the exercise of the right of redemption which the law gave him, and therefore, a provision not to be enforced. This view, however, was directly negatived in a subsequent Full Bench decision of the Allahabad High Court in Har Prasad v. Ramchandra AIR 1922 All. 174. The Full Bench of the Allahabad High Court in this case held that the effect of the second bond, which was similar to the second bond in the present suit, was to create a further usufructuary mortgage on the share of the executant which was under the mortgage of 1880 and was made security for the additional debt incurred and that under the terms of that deed the mortgagee was entitled to retain, possession of his share of the property until the amounts secured by the two documents were paid to him. The suit for recovery of possession was accordingly decreed in that case. The same view was taken by the Allahabad High Court in Shib Narain Vs. Gajadhar and Others and in Jeut Koeri and Another Vs. Mathura Koeri and Others in which it was said that the decision in the case of Sheo Shankar v. Parma Mahton [1904] 26 All. 559 must be held to have been overruled by the Full Bench in Har Prasad v. Ram Chandar AIR 1922 All. 174 and Sita Ram v. Sheo Darshan [1926] 96 I.C. 197 and in Mt. Daulat Bibi v. B. Gajadhar Prasad Singh [1926] 96 I.C. 555. The Lahore High Court has also taken the same view in Nathwa v. Kanhiya AIR 1921 Lah. 170.

It is thus clear that the trend of the recent decisions is that stipulations similar to those contained in the second bond in suit are not in any way illegal and unenforceable in law and that the period of limitation did not begin to run until after the dispossession of the plaintiff by the defendant. The view taken by the Subordinate Judge was, therefore, not correct and that taken by the Munsif was correct.

The result is that the decree of the learned Subordinate Judge must be set aside and that of the Munsif restored with costs throughout.

Macpherson, J.

I agree.