Rang Raj Singh vs Sheonarain Lal and Others

Ross, J.—The question in this appeal is whether interest has been secured on the property mortgaged to the plaintiff. The suit was contested by defendant 1, the purchaser of part of the mortgaged property. The learned Munsif had held that the interest was secured; but the learned Subordinate Judge reversed his decision and allowed the defendant, who is the respondent here, to redeem on payment of his proportion of the principal sum only.

The question depends upon the construction of the mortgage bond. That bond is in the first instance a zarpeshgi thika patta for a term of five years granted in consideration of an advance of Rs. 950 carrying interest at 12 per cent. per annum under which interest is to be realized from the usufruct of the property. There is a provision that if the advance be not repaid within the term of the lease the land is to remain in possession of the zarpeshgidar until repayment. Then there is a personal covenant by the mortgagor that in case of dispossession of the zarpeshgidar the principal zarpeshgi money with interest from the date of dispossession to the date of realization would be realized from the person and the other properties of the mortgagor. Lastly follows a simple mortgage in these words:

In security of the zarpeshgi money we mortgage the zarpeshgi properties with the zarpeshgidars.

The learned Subordinate Judge, finding that there was no mention of interest in this last clause held that the defendant was entitled to redeem without payment of interest.

Learned Counsel for the respondent contends that inasmuch as interest is expressly provided for in the personal covenant it must be taken that the absence of any reference to interest in the mortgage clause excludes interest from the security; but I see no reason why, because personal covenant provides expressly for payment of interest the hypothecation clause which does not expressly refer to interest should be construed as excluding it. There is no reason why the interest should not have bean secured. The security is for "the zarpeshgi money" and the rule, as stated by the Judicial Committee in Ganga Ram v. Natha Singh AIR 1924 P.C. 183, is that the mortgagee in the absence of any contract to the contrary is entitled to treat the interest due under the mortgage as a charge on the estate.

I can find no contract to the contrary in this clause; and the mere fact that there is an express reference to interest in the personal covenant and no express reference to interest in the hypothecation clause is not in my opinion evidence of a contract to the contrary.

I think, therefore, that the learned Munsif was right in his construction of this deed and I would allow this appeal with costs here and in the lower appellate Court, set aside the decree of the Subordinate Judge and restore the decree of the learned Munsif.

Dawson-Miller, C.J.

I agree.