Mukerji, J.:— This appeal arises out of a suit for redemption instituted by respondent 1 on 15th July 1927 to redeem a usufructuary mortgage in favour of the appellant, executed by respondent 2, Ahmad Ali, on 14th June 1923.
2. As originally framed, the suit was a suit for redemption based on the simple ground that mortgage money had become payable and there should be a redemption. In the lower appellate Court another ground was taken, namely that there had been a breach of contract by the appellant, and therefore redemption should be allowed, although the term had not expired. The learned Subordinate Judge decreed the suit on both the grounds though the learned Munsif had decreed the suit on the first ground alone. The facts are briefly these: Ahmad Ali, the mortgagor, made two simple mortgages, one in favour of one Abdur Rahman for a sum of Rs. 240, and the other in favour of Khan Bahadur Saiyid Mubarak Husain for a sum of Rs. 410 on 8th January 1921. The first mortgage money was payable without interest by instalments of Rs. 20 a year, the instalments being payable on 1st July 1921 and in subsequent years. The money due to Khan Bahadur Saiyid Mubarak Husain was payable by instalments of Rs. 30 each on 1st July of every year commencing with 1921. Ahmad Ali executed a third simple mortgage in favour of one Munni Lal on 16th September 1922 for a sum of Rs. 200.
3. To arrange payment of all these three mortgages Ahmad Ali executed the mortgage in question, namely the one in favour of Akbar Husain, on 14th June 1923 for a sum of Rs. 1,225. Prior to the execution of this document Ahmad Ali had paid off the instalments which fell due in 1921 and 1922, to the two mortgagees Abdur Rahman and Mubarak Husain. It was agreed between the mortgagor and Akbar Husain that Akbar Husain would pay the instalments, as they fell due to Abdur Rahman and Mubarak Husain, and Akbar Husain would pay Rs. 275 to Munni Lal and would pay Rs. 450 in cash to Ahmad Ali. Munni Lal and Ahmad Ali were paid up, and the instalments due to Abdur Rahman and Mubarak Husain were paid up to 1st July 1925.
4. There was a default in payment of the instalments due to Mubarak Husain on 1st July 1926, and he brought a suit for recovery of the entire money due to him on 1st July 1926 and obtained a decree on 9th March 1927. Thereupon, Ahmad All executed a usufructuary mortgage in favour of the plaintiff Ahsanul Haq on 21st April 1927 for Rs. 1,600 and left portions of the mortgage money with Ahsanul Haq for payment to his previous creditors, namely Mubarak Husain, Abdur Rahman and Akbar Husain, the appellant-He took a sum of Rs. 182 in cash.
5. Ahsanul Haq thereupon instituted the suit out of which this appeal has arisen for redemption of the mortgage of 14th June 1923.
6. The plaintiff was met with the plea that the mortgage was for ten years certain and as the term had not expired, there could be no redemption. In the appellate Court it was urged on behalf of Ahsanul Haq that the non-payment of the instalment of 1926 by Akbar Husain, amounted to a breach of contract and that this fact entitled Ahsanul Haq to sue for redemption before the expiry of the terms. The first question that we have to consider is, whether on the terms of the usufructuary mortgage of 1923, it is open to Ahsanul Haq to ask for redemption before the expiry of ten years. In Bakhtawar Begam v. Husaini Khanum(1) their Lordships of the Privy Council laid down the doctrine that the term of a mortgage is for both the mortgagor and the mortgagee. Within the term the mortgagee cannot enforce the mortgage and within the term the mortgagor cannot sue for redemption. It was no doubt open to the parties to fix two different dates for the enforcement of the rights of the mortgagor and the mortgagee respectively. But where only one term is fixed it is to be regarded that term, is meant equally for both.
7. With this rule of law in our mind if we read the document in question we shall see without difficulty that there was only one term, and that was for both the parties. The translation that had been supplied to us reads as follows:
“Whereas I have taken a loan of Rs. 1,225 … and have made a usufructuary mortgage for a term of ten years …. The agreement is that when I, the mortgagor, do pay to the mortgagee within ten years the entire mortgage money, cash and in a lamp sum, then the property mortgaged will stand redeemed.”
8. Again we have got the following sentence:
“Hence I have executed this usufructuary mortgage deed by conditional sale of ten years that it may serve as evidence when necessary.”
9. There are two other terms which are material. One is that after the expiry of ten years, the mortgagee of the property would become the vendee (proprietor) and the mortgagor would become the vendor. The other term is that sums of money were left with the mortgagee so that he might pay annually the instalments due to Khan Bahadur Mubarak Husain and Ablur Rahman.
10. To take up the last clause first: it appears to us that if the idea was that redemption could be had at any time within ten years, it would become impossible for Akbar Husain to satisfy the money due to Mubarak Husain and Abdur Rahman. We have already mentioned that the amount due to Abdur Rahman was Rs. 240, out of which only Rs. 40 had been paid. It was therefore clearly contemplated that Akbar Husain would remain in possession for ten years so that he may be able to pay up the balance of Rs. 200 in the course of ten years at the rate of Rs. 20 a year.
11. At two places already quoted we have got the expressions that the term of the mortgage was ten years, but as against these two clauses, there is the clause which says that the mortgagor would be entitled to redeem the property if he paid within ten years. The question is whether the last clause overrides the two other clauses, and if not, what is the meaning of the expression “within ten years?” In our opinion the term of the mortgage being distinctly mentioned at two places, it is not open to us to read the words “within ten years” as meaning at any time before the expiry of ten years.” The idea of putting in the words “within ten years” arose from this: on the expiry of ten years the mortgage was to cease as a mortgage transaction and was to become a sale transaction. That is why it was said that the payment had to be paid within ten years.
12. It has been argued that the mortgagor must be allowed to redeem, within the term of ten years as under the actual terms of the mortgage, he will otherwise, have no opportunity to pay. If the mortgagor cannot pay within ten years, he cannot pay after the expiry of 10 years, for then, the mortgagee becomes the owner and therefore there can be no redemption after ten years. The argument is not sound. A mortgagee by conditional sale is not entitled to become the owner of the property, without a suit for foreclosure, and it is always open to a mortgagor to pay up and avoid foreclosure at any time before there is a final decree for foreclosure. Therefore whenever there is a mortgage by conditional sale, and there is a term fixed for the mortgage, the condition stipulated is bound to be in the language of the present document that the mortgagor would be entitled to redeem the property within a specified number of years. There is to be no redemption within the term of the mortgage and there is to be no foreclosure within the term of the mortgage. If after the expiry of the term of the mortgage, a payment is made there will be a redemption. If there is no payment the mortgagee would be entitled to sue for foreclosure. It is not necessary that a period should be fixed, after the expiry of the term of the mortgage, within which the mortgagor is to be permitted to pay up. By way of illustration, we may say that it was not necessary in this particular case before us, to say that after the period of ten years, the mortgagor should have had, say, a period of one year, within which he could pay up.
13. A number of cases has been cited before us on either side in order to guide us as to how we are to interpret the document before us. It is always a profitless task to attempt to read one document in the light of another, and we will simply content ourselves with quoting the cases. Learned counsel in this case have placed before us these cases. For the appellant, Shiam Lal v. Jagdamba Prasad(2). For the respondents: Hafiz Amir Muhammad v. Wazir(3).
14. We hold that no redemption is possible within the period of ten years under the terms of the mortgage.
15. As regards the point that there has been a breach of contract on the part of the appellant, and therefore there should be a redemption in spite of the non-expiry of the term of the mortgage: this was purely a question of fact and no pleadings were there in the Court of first instance on the point and there wag no issue. The learned Subordinate Judge hearing the appeal ought not to have decided the case on the question of fact without giving the parties an opportunity to meet it.
16. The facts involved have already been cited above. One point is clear, namely, Akbar Husain never had an opportunity to pay off the decree passed in favour of Mubarak Husain. It has been conceded before us that Akbar Husain contested Mubarak Husain's right to bring his suit owing to the default, but in spite of his contest Akbar Husain lost and a decree was made against him, as also against Ahmad Ali on 3rd March 1927. If the decree had been executed Akbar Husain, in all probability, would have paid up. If he had failed to pay it might have been said that he committed a breach of the contract. On the other hand, if Akbar Husain had paid up there could have teen no ground for complaint. But what happened was that within a month and a half of the passing of the decree in favour of Mubarak Husain the present respondent 1 Shah Ahsanul Haq obtained a mortgage, on 21st April 1927 and wanted to effect a redemption. We are not aware that Akbar Husain ever denied his liability to satisfy the decree of Mubarak Husain. In the circumstances we do not see how there was a breach of contract.
17. In view of these facts we do not propose to embark on an investigation of the subject, namely, whether on the failure on the part of the mortgagee to pay a part of the mortgage money, as agreed by him, it is open to the mortgagor or his representative to institute a suit for redemption within the term of the mortgage. The cases that have been quoted before us are extreme cases, but whether they are correctly decided or not it is not necessary for us to consider. In the result we allow the appeal, set aside the decrees of the Courts below and dismiss the suit of respondent 1, Shah Ahsanul Haq, with costs throughout.
V.B/R.K
18. Appeal allowed.