Bir Mahamed Rowther v. Nagoor Rowther

1. We must follow the Privy Council ruling in Bakhtawar Begam v. Husaini Khanurn(1), and if there are some observations in Rose Ammal v. Rajarathnam Ammal(2) which cannot be reconciled with that ruling, those observations must be held to be overruled. The effect of the Privy Council ruling is that the mortgagor cannot be allowed to redeem the mortgage before the expiry of the term mentioned in the mortgage-deed unless there is a contract to the contrary in favour of the mortgagor.

2. There is no evidence of any such contract in this case. The usufructuary mortgagees (plaintiffs) are therefore entitled to remain in possession for the seven years' term agreed upon between themselves and the mortgagors and hence they cannot be redeemed by the appellant (defendant 3 who is a purchaser of the mortgagor's right) in this suit which was brought before the term of seven years expired.

3. This is the only arguable point in this second appeal, and, as that has failed, we dismiss the second appeal with costs.

S.N/R.K

4. Appeal dismissed.