Purshottam Hari Choudhari vs Vasant Shankar Choudhari

John Beaumont, Kt., C.J.—This is an appeal from an order of the District Judge of Ahmednagar.

The plaintiff alleges that he is the purchaser of the equity of redemption of property included in a mortgage dated April 7, 1875, and he alleges that the amount due on the mortgage has been paid off, and he asks for a declaration that the amount has been paid off, and for recovery of possession from the mortgagee. The trial Court dismissed the suit, partly because it considered that an early mortgage of 1871 ought to have been redeemed, and partly on the ground of merger. The question of merger arises because the plaintiff, who has purchased the equity of redemption, is also a member of the joint family which is said now to own the mortgage. In appeal the learned District Judge thought that the earlier mortgage of 1871 was discharged by the suit mortgage of 1875, and I see no reason to differ from that finding. He thought that there was no merger, because the plaintiff owned the equity of redemption in his individual capacity, and was interested in the mortgage as a member of the joint family, and he, therefore, allowed the appeal, and directed certain issues to the trial Court.

In my opinion, a suit of this nature does not lie. It is, in form, a suit by the owner of the equity of redemption to recover possession from the mortgagee without any offer to redeem. It is an elementary rule under English law that if a mortgagor wants to get relief against his mortgagee, he must offer to redeem. The mortgagor in this case alleges that the: money due under the mortgage has been paid, and, of course, if that were admitted by the mortgagee, no doubt, he could be directed to reconvey the property. But the mortgagee in his written statement denies that the mortgage, is satisfied, and alleges collusion between the plaintiff and certain other defendants. The mortgagee alleging that the amount due on the mortgage is not satisfied, the only possible way in which the Court can decide the matter is by directing the usual mortgage accounts, that is to say, by treating this as a redemption suit, directing the accounts, and making any obligation on the mortgagee to reconvey conditional on his being paid the amount due. No doubt, the mortgagor has framed his suit in this manner, because he wants to take advantage of the fact that a redemption suit can be brought at any time within sixty years from the time when the money became due, and he has filed this suit Just within the period of sixty years. If his claim were based on title, there would obviously be grave risk that it would be barred by limitation. It is difficult to suppose that, if all the money has been paid, it had not been paid more than twelve years before the filing of the suit. To avoid a risk of this sort, the plaintiff brings this as a redemption suit and at the same time does not offer to redeem. He alleges that the amount is paid, but does not offer to redeem if his allegation is not proved. In my opinion a suit in this form does not lie. When a party waits till very nearly the full period of sixty years from the date when the cause of action accrued for filing a suit, I do not propose to encourage such conduct by giving leave to amend If the suit is not in form, it will be dismissed, however technical the point may be.

I think this suit is not in proper form, and it must, therefore, be dismissed with costs.

I allow the appeal with costs, and dismiss the suit with costs throughout.