9911796707
TMI Blog1914 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ff Husaini Khanam alleges that on the 6th of January 1830 her father, Aga Fateh Ali, in conjunction with another relative named Aman Ali, executed a mortgage by way of conditional sale in respect of twelve villages lying within the district of Cawnpore in favour of one Ata Ullah Khan, since deceased. The other plaintiffs are persons who have ' acquired title from Husaini Khanam. The principle defendant in the action was one Ali Husain Khan, who was the representative of Ata Ullah. He died since the decision by the High Court in the appeal from the decree of the Subordinate Judge, and he is now represented by his widow, Bakhtawar Begam, the appellant. The remaining defendants are assignees of interests created by the original mortgagee o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be cancelled on payment of the amount of consideration in nineyears, and that, there for the sale was not an absolute but a conditional sale. 6. The period of limitation under the Indian Statute for suits for redemption or for recovery of possession of mortgaged property is sixty years from the date of the accrual of the right to redeem or to recover possession (Article 148, Schedule II, Act XV of 1877). The Subordinate Judge was of opinion that limitation began to run from the date of the contract, and accordingly held that the suit was barred. The High Court of Allahabad on appeal have taken a different view. The learned Judges considered inter alia that the right to redeem in respect of the seven villages which were in the poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore it is not competent for either party to disturb that relation. 9. And they refer to a number of cases in support of their conclusion. Ordinarily, and in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period. But there is nothing in law to prevent the parties from making a provision that the mortgagor may discharge the debt within the specified period and take back the property. Such a provision is usually to the advantage of the mortgagor. In the present case had the matter depended only on the construction of the contract as given in the proceeding of the Collector, much might b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause or condition in the contract. It is a distinct allegation of fact on which the right to recover possession is founded. But the matter does not rest there. The plain tiffs produce with the plaint a statement of accounts in respect of the twelve villages based on the settlement records to show the amounts realised by the mortgagee from 1830 to 1897. In this document it is clearly stated that the whole debt was satisfied in 1245 Fasli (4th September 18374th September 1838). From that time the balance of the realisations by the mortgagee after deduction of the legitimate outgoings is treated Husaiki by the plaintiffs as sums retained by him without any right. Khanam 13. If the fact be, as the plaintiffs allege, that the mortgage debt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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