JUDGMENT Boys and Banerji, JJ.
1. This is a plaintiffs appeal. The suit was by one Shib Narain, who had purchased the rights of the mortgagor, for redemption of a usufructuary mortgage dated the 21st of May 1864 made by Govind Prasad in favour of Chaudhri Behari Lal.
2. This mortgage was for a sum of Rs. 500, and was admittedly a usufructuary mortgage.
3. It had been followed by a second mortgage on August 14th 1864 for Rs. 200 in favour of the same mortgagee. It recited the first mortgage for Rs. 500 and further declared that the mortgagor should not be entitled to redeem without discharging the second loan also.
4. This was again followed by a third mortgage on June 1st, 1867, in favour of the same mortgagee. It recited the prior total debt of Rs. 700; it referred to a subsequent "mashrut-ul-rahn " document for Rs. 200 which was being taken back (and with which we are no further concerned) and then said that Rs. 99 was being taken in cash and for this total Rs. 299 the mortgagor was executing this fresh mashrut-ul-rahn (the deed itself contains this description) document; and it was further declared that the executant would pay this Rs. 299 first before discharging the earlier debt, and would pay up all interest before taking possession.
5. These three mortgages we will refer to hereafter as the first, second and third mortgages.
6. On the 23rd of August 1980 an agreement was signed between one Baldeo, the father of Gajadhar, the principal defendant-respondent in this case, and Chaudhri Behari Lal, the mortgagee above named, in which Chaudhri Behari Lal is said to have recognised Baldeo as half owner in at any rate the first mortgage, and one of the questions we have to decide is whether this agreement recognised him as half owner of the second and third mortgages also.
7. On the 6th of December 1914 the heirs of Govind Prasad, the mortgagor, sold the equity of redemption to Shib Narain, the present plaintiff, who is the son of the deceased Chaudhri Behari Lai the mortgagee. The result of this transaction was that Shib Narain became the sole owner of half the property, and owner of the equity of redemption in regard to Baldeo's half.
8. On the 5th of December 1919 Shib Narain filed this suit for redemption, in respect of the first mortgage, of the half mortgaged to Baldeo. He alleged that he had deposited certain monies under Section 83 of the Transfer of Property Act; that the defendant refused to withdraw the amount; and that now, on the other hand, there was due to him, Shib Narain, a sum of Rs. 650. The defence was that the defendant Gajadhar, son of Baldeo, now deceased, was also entitled to a half share in the second and third mortgages, and farther that the first mortgage could not be redeemed without prior or at least simultaneous discharge of the second and third. Both points were decided against the plaintiff by both Courts and the suit was dismissed in toto.
9. Three points arise for determination in this case.
10. First, whether the defendant Gajadhar, son of Baldeo, is entitled under the agreement of the 23rd of August 1880 to a half share only in the first mortgage, or also to a half share in the second and third mortgages.
11. The second question is, whether the defendant could insist upon the discharge of the second and third mortgages at the same time as the redemption of the first usufructuary mortgage.
12. The third question is, if it be held that the plaintiff could only obtain redemption of the first mortgage on condition that he also discharged the second and third, could he now be given a decree in respect of all three mortgages when he dead only asked for redemption in regard to the first.
13. We will consider first the agreement of 1880. That contains the words: "Girwi ki 70 bighas 4 biswas" and later the words: Hamaro tumharo jo hissa brabar lea hai". It is urged for the appellant that the word "girwi" indicates that this acknowledgment of equal shares could refer only to mortgages of the nature of a usufructuary mortgage and could not refer to the second and third mortgages. We see no justification for this restriction of the term, but we may add that even if that were a justifiable interpretation of the word, there is authority in the judgment of Mr. Justice Banerji in liar Per shad v. Ram Chander 63 Ind. Cas. 750 : 44 A. 37 : 19 A.L.J. 807 : 3 U.P.L.R. (A.) 139 : A.I.R. 1922 All. 174 (F.B.), for holding that even the second and third mortgages in this case may be regarded as usufructuary mortgages. It is not, however, necessary to press that, for, as we have said, there is nothing in the word "girwi", so far as we are aware, to restrict it to a usufructuary mortgage. On the other hand we think that the words "girwi ki" were here only used as descriptive of all the mortgagee rights of the parties in the property specified as distinguished from their vendee rights in other property referred to as "bainamah ki." Farther for the appellant reliance was plaged on an admission said to have been made by the defendant Gajadhar in cross-examination, that his right to possession was only-based on the first usufructuary mortgage-deed. This would clearly not be sufficient to preclude him from maintaining that the three mortgages were really one. It is obvious that in one sense his claim for possession would be based on his first usufructuary mortgage. The statement was, moreover, brought out in cross-examination, but in examination-in-chief he had already definitely asserted his claim to be based on all the three mortgages. We hold, therefore, that the defendant had in fact a half share in all three of the mortgages, and we decide this question against the appellant.
14. The second question is, can the defendant compel simultaneous redemption of the second and third mortgages. The plaintiff-appellant claims that he cannot. It is urged for him that he need not redeem simultaneously the later mortgages, unless they "consolidated the old and the new transactions." It would seem that of this class of case there may be three types: Where it is suggested (1) that the first mortgage cannot be redeemed unless the., second mortgage is first or simultaneously redeemed; (2) that the second mortgage cannot be redeemed unless the first mortgage is first or simultaneously redeemed, and (3) that neither the first nor the second can be redeemed separately. The present case is alleged by the defendant to be of the first type, with this addition that there is a third mortgage which bears to the first two the same relation that the second bears to the first.
15. We will consider first whether the first mortgage can be redeemed without redeeming the second.
16. We have set out at the commencement of this judgment the terms of the deeds sufficiently for the present purpose.
17. In support of his claim to redeem the first mortgage alone, the appellant relies on Bhartu v. Dalip 3 A.L.J. 672 A.W.N. (1906) 278 and Kesar Kunwar v. Kashi Ram 30 Ind. Cas. 777 : 37 A. 634 : 13. A.L.J. 889. In Bhartu v. Dalip 3 A.L.J. 672 A.W.N. (1906) 278, it is clear that the restrictive agreement embodied in the later mortgage was misread and the effect of the particular decision was explained away in the later decision by the same learned Judge in Brij Lal Singh v. Bhawani Singh 7 Ind. Cas. 115 : 32 A. 651 : 7 A.L.J. 821 which we shall notice later when considering the cases that support the respondent. The other case reported as Kesar KuviUar v. Kashi Ram 30 Ind. Cas. 777 : 37 A. 634 : 13. A.L.J. 889 relied on for the appellant helps him no more. In that case it was only held that (assuming that, if the second mortgage was not time-barred, the defence would be a good one that it must be paid off before redeeming the first mortgage) where there was a provision that the first mortgage should not be redeemed without paying off the second, and the second was in fact barred by limitation, the Court could not possibly allow the defendant to rely on the condition as to first discharging the second mortgage and so in fact enable him to secure payment of a debt which he had allowed to become time-barred.
18. For the defendant-respondent reliance was placed on Ranjit Khan v. Ramdhan Singh 2 Ind. Cas. 533 : 31 A. 182 : 6 A.L.J. 654, Brij Lai Singh v. Bhawani Singh 7 Ind. Cas. 115 : 32 A. 651 : 7 A.L.J. 821 and liar Pershad v. Ram Chander 63 Ind. Cas. 750 : 44 A. 37 : 19 A.L.J. 807 : 3 U.P.L.R. (A.) 139 : A.I.R. 1922 All. 174 (F.B.), We are perfectly satisfied that on the terms of the second mortgage it is governed by the principles laid down in, the three cases that we have quoted; that it is in the nature of an additional mortgage hypothecating the property, and that on the principles laid down in those three cases the plaintiff mortgagor was not entitled to redeem the first mortgage -without at the same time discharging the second.
19. The case of the third mortgage is even more clear. In that the expression "mashrut-ul-rahn" specifically occurs, and as regards this mortgage Counsel for the appellant has not found it possible to resist seriously the contention of the defendant that this third mortgage must be discharged before or simultaneously with redemption of the first.
20. As to the third question it has similarly not seriously been contended that the plaintiff could obtain redemption of the first mortgage and discharge the second and third on his prayer as at present framed, in which the relief asked for has only referred to the first mortgage. But it is urged. On his behalf that we should allow him now even at this stage to amend his plaint, and remand the case to the lower Court for determination of the question as to how much is due on all three mortgages together. This, course was permitted in Brji Lal Singh v. Rhawani Singh 7 Ind. Cas. 115 : 32 A. 651 : 7 A.L.J. 821 though it appears not to have been followed in the earlier case reported as Ranjit Khan v. Ramdhan Singh 2 Ind. Cas. 533 : 31 A. 182 : 6 A.L.J. 654.
21. We think that such a prayer should not be too readily granted; that in view of the decisions to which we have referred the law as interpreted by this Court at any rate should be well enough known. In the present case, however, we are prepared to accede to the prayer. We have, therefore, given the appellant permission to amend the plaint so as to ask for relief as regards the second and third mortgages also, and, that amendment having been made, we remand this case to the Court of first instance through the lower Appellate Court under Order XLI, Rule 25 with directions to take such further evidence as may be necessary, and to determine the amount that may be due by the plaintiff to the defendant on foot of all three mortgages. On return of the finding the usual ten days will be allowed for filing objections.
On receipt of the finding Dalai and Boys, JJ., on December 1, 1925, delivered the following
22. This suit was remanded by this Bench under Order XLI, Rule 25 of the C.P.C. to permit the plaintiff-appellant to amend his plaint and include the other mortgages therein. This was done and the lower Appellate Court has decided that Rs. 4,913 is due by the plaintiff for the purpose of redemption of all the three mortgages. The plaintiff is owner of half the mortgagee rights and he has sued for the redemption of only half of the property. The amount, therefore, which he will have to pay will be half of Rs. 4,913.
23. The other objection to the finding of the lower Appellate Court relates to the amount of interest payable on the bond of 14th August 1864. Interest is calculated on that amount at the simple rate of Rs. 1-4-0 per cent, per mensem from the date of the bond, 14th August 1864 up to the date on which the lower Court prepared the account that is 21st of July 1925. The amount of interest comes to Rs. 1,828 It is argued here on behalf of the plaintiff appellant that interest would be recoverable by the defendants only for 12 years, that is, Rs. 360. The bond contains a stipulation that the mortgagee may sue for the interest due on this bond separately. On this ground the plaintiff's case is that the suit for interest for, a period of more than 12 years is time-barred. We have read the terms of the bond and do not accept this contention. In the bond the amount borrowed is stated and then the rate of interest and it is stated, after this that the money shall be paid when the amount due on the prior mortgage is paid and the prior mortgage is redeemed. The words used are yih rupiya, this money. According to the plaintiff's Counsel this term denotes only the principal amount and not the interest because as pointed out by him there is no stipulation that the interest was to be added to the principal. Finally, there is the permission granted to the mortgagee to sue for interest separately. We are' of opinion that this is an additional privilege granted to the mortgagee and he was not bound to sue separately for interest. If he was satisfied with the security and permitted the interest to accumulate there was no bar to that procedure according to the terms of the bond. In ordinary acceptance of the term "this money" would include the principal amount together with interest. We disallow objection No. 1.
24. In the result we decree the plaintiff's suit for redemption on payment of Rs. 2,456-8-0. A preliminary decree for redemption shall be prepared under Order XXXIV, Rule 7 of the C.P.C. Interest shall run at bond rates on the two bonds of 1864 from the 21st of July 1925 up to six months from to-day's date. On non payment of the money within the time specified the usual result shall follow. The mortgagee-respondents shall receive their costs of all the Courts-costs according to the valuation of the property including fees here on the higher scale.