1921 (12) TMI 1

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....whether Muhammad Sher Khan, the mortgagor and appellant in both appeals has a present right on payment of the mortgage money to redeem the mortgaged property. This has been decided adversely to him in both the lower courts, 3. The mortgage is dated the 9th day of June, 1908, and is Exhibit A 36 on the record. The sum of Rs. 82,000 is recited to be due, and the mortgagor declares. "Therefore I... do hereby mortgage for five years" the immovable property there described. Then follow the terms. 4. Clause I provides for the payment of interest half-yearly at the rate of 9 1/2 annas per cent per month, for compound interest, in the event, of default, and that: This system of payment of interest and of compound interest by six-mont....

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....fits in lieu of interest, and that during the period of possession neither the mortgagee will have any claim to interest nor the mortgagor to profits, and there will be no accounting as to shortage or surplusage of profits at the time of redemption. 10. Clause 9 provides: That on the expiry of twelve years at the end of Jeth, i.e., on Puranmashi in the fallow season I shall redeem the mortgaged property on payment of principal, interest and compound interest," and other specified payments. Pending the payment of the entire demands due hereunder the mortgagee will as usual remain in possession and occupation of the mortgaged property in accordance with the above-mentioned conditions. 11. Interest fell into arrear, and at th....

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....s in both suits on the 30th day of May, 1919. 14. Many questions were raised in the Courts below winch have now disappeared, and all that now remains to be determined is whether the present claim to redeem is premature. Mortgages of immovable property are governed by the provisions contained in Chapter IV of the Transfer of Property Act. 1882. In Section 58 four kinds of mortgage are described--a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, and an English mortgage. Section 98, headed "Anomalous Mortgages," contemplates a mortgage that does not fall under any of the four descriptions contained in Section 58, and is not a combination of a simple and a usufructuary mortgage or of a mortgage by conditional sale a....

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.... redemption to enter and take the rents in satisfaction of the interest would be perfectly valid if it did not also hinder an existing right to redeem. But it is this that the present mortgage undoubtedly purports to effect. It is expressly stated to be for five years, and after that period the principal money became payable. This, under Section 60 of the Transfer of Property Act, is the event on which the mortgagor had a right on payment of the mortgage-money to redeem. 18. The section is unqualified in its terms, and contains no saving provision, as other sections do, in favour of contracts to the contrary. Their Lordships, therefore, see no sufficient reason for withholding from the words of the section their full force and effect. In....