Bir Mohamad Rowther vs Nagoor Rowther, and Another

We must follow the Privy Council Ruling in Bakhtawar Begam v. Husaini Khanaum ILR (1913) A. 195. 26 M.L.J. 474 and if there are some

observations in Rose Ammal v. Rajaratna Ammal ILR (1898) M. 33 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 mortgagee before the expiry of the

term mentioned in the mortgage deed unless there is a contract to the contrary in favour of the mortgagor. 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 (3rd defendant) who is a purchaser of the

mortgagors'' right) in this suit which was brought before the term of 7 years expired.

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