Vishvendra Thirthaswami vs Vishnumurti Bhatta and Others

Assuming that the documents, Exhibits C, E, F and G, are admissible in evidence for the purpose of proving the mortgage sued on and the

provisions thereof, as to which we express no opinion, we are not prepared to say they negative the evidence afforded by Exhibit B (the judgment

of the appellate Court in a suit in 1839 on the mortgage in question) which is admissible under Sections 74 and 90 of the Evidence Act, and which

shows, as the Munsif finds, that the mortgage deed provided that the plaintiff might redeem at the end of any year within 15 years. The only

evidence in this case consists of the statements in exhibits A and B of the predecessor in title of the plaintiff and the statement in Exhibit E of the

predecessor in title of the defendant, and we cannot accept the statement in Exhibit E, of the defendant''s predecessor in title as against the

plaintiff''s own statement in Exhibit B. In view of the special provisions in the mortgage deed it is not necessary for us to consider the question of

construction (with regard to which conflicting views have been taken) which arose in Vadju v. Vadju ILR (1880) B 22 and Raghubar Dayal v.

Bhikya Lal ILR (1885) C. 69 on the one side and in Chinnasamy Reddiar and Another Vs. Krishna Reddy and Others, and Rose Ammal v.

Rajaratnam Ammal ILR (1898) M. 33 on the other.

Having regard to the terms of the instrument in question, the plaintiff has failed to show that his right to redeem only arose within 60 years of the

date of the institution of his suit.

We must set aside the decrees of the Courts below and dismiss the suit.

Having regard to the position which the parties took up in the suit of 1839, we direct that each party bear his own costs throughout.