Radhey Lal and Others vs Mahesh Prasad and Another

W. Comer Petheram, C.J.—I am of opinion that this appeal must be dismissed. The facts are, that one Shaikh Abdullah, being in possession of a certain property, made a grant from it of an annuity to his sister and her heirs, with a proviso that, in case of failure to pay the annuity, the grantee and her heirs should be entitled be take possession of the property. He paid the annuity and kept possession, and subsequently mortgaged the property to the present defendants, and, by the terms of the mortgage, declared that the property was absolutely his own, and that no other person had any interest in it. He remained in possession, and paid the annuity till his sister''s death, He was then her heir, and therefore the whole right to the charge, and the right to possession in default of payment, vested in him.

The charge consequently merged and was extinguished, and as he had previously professed to transfer the property to the defendants unincumbered, he was bound to give it over free from incumbrance. The charge having been extinguished in his hands, he then had what he professed to have at the time when he executed the mortgage, and it would not lie in his mouth, nor in mouths of his two sons, to say that the charge was still existing, and could be set up against the mortgagees and their vendees. This would amount to. taking advantage of his own fraud--a course which no Court of law would allow for a moment. I am therefore of opinion that the Subordinate Judge was right, and that the appeal must be dismissed with costs.

Brodhurst, J.

I am of the same opinion.