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1870

SRIMATI SARASIBALA DEBI

v. NAND LAL

Sen.

a certificate under Act XXVII of 1860, and now sought to obtain possession of the talook in dispute.

The defence was (inter alia) that, under the terms of the deed, the time specified for liquidation of the debt extended to the 4th September 1868, and therefore there could not be any foreclosure of the equity of redemption before that date; that there was no condition that, in default of payment of interest or of any instalment, the entire amount would become due; that the notice of 4th December 1866 was of no effect; that the mortgagors were entitled, under Regulation XVII, 1806, section 8, to one year after notification subsequent to 4th September 1868, which they had not, and could not have, received, as the present suit was instituted prior to that date, and that therefore the plaintiff could not maintain this suit for possession.

The property was conveyed to Gabindchandra Sen, his heirs, representatives, and assigns absolutely, subject to the following provisos :

“Provided always, nevertheless, and it is the true intent and meaning of these presents and of the said parties hereto, that, if the said Srimati Sarasibala Debi and Himendranath Mookerjee, or either of them, their or either of their heirs, executors, administrators, or representatives, or other the representatives in estate of the said Sham Lal Tagore deceased, or any other person or persons on their or either of their behalf, do and shall, on or before the fourth day of September, which will be in the year of Christ one thousand eight hundred and sixty-eight, well and truly pay, or cause to be paid unto the said Gabindchandra Sen, his executors, administrators, representatives, or assigns, the full and just sum of rupees fifty-four thousand four hundred and thirty-seven, ten annas, and four pie, of lawful money of Bengal, and also do and shall, in the meantime, well and truly pay, or cause to be paid, interest thereon respectively at and after the rate of ten per cent. per annum, payable half-yearly, on the fourth day of March and fourth day of September in each and every year, the first payment whereof is to to be made on the fourth day of March next ensuing, with annual rests in the accounts, in case of default in payment of such interest, then, and in such case, the said Gabindchandra Sen, his heirs, executors, administrators,

1870

SRIMATI SARASIBALA

DEBI

0. NAND LAL

SEN,

representatives, or assigns, shall and will, at any time or times thereafter, at the request, costs, and charges of the said Srimati Sarasiballa Debi and Himendranath Mookerjee, or either of them, their or either of their heirs, representatives, or assigns, or other the representative in estate of the said Sham Lal Tagore, reconvey and re-assure the said zemindari lands, hereditaments, and premises unto and to the use of the said Srimati Sarasiballa Debi and Himendranath Mookerjee, their heirs, executors, representatives, or assigns, or as they or any or either of them shall direct or require.

“ Provided also, and it is hereby declared and agreed by and between the said parties to these presents, and the said Srimati Sarasibala Debi and Himendranath Mookerjee do, and each of them doth for themselves, himself, and herself, and for their, his, or her executors, administrators, representatives, or assigns, covenant, agree, and declare that, in case default shall be made in payment of the said principal and interest-moneys hereinbefore mentioned, or any part thereof, on the days when the same shall respectively become due and payable, then, and in any or either of such cases, it shall be lawful for him, the said Gobindachandra Sen, his heirs, executors, administrators, representatives or assigns, and he and they, is and are, hereby expressly authorized and empowered, either immediately after any such default, refusal, or event happening as aforesaid, or at any time or times thereafter (and after giving six months' notice in writing as hereinafter mentioned) of his and their own sole authority, and without any further consent or concurrence of the said Srimati Sarasibala Debi and Himendranath Mookerjee, or any or either of them, their or any or either of their representatives or assigns, and notwithstanding the minority or disability, or legal incompetency of the heirs, representatives, or assigns of the said Srimati Sarasibala Debi and Himendranath Mookerjee, or either of them, to make sale, and absolutely to dispose of the said zemindari lands, hereditaments, and premises hereby released or otherwise assured, or intended so to be, or any part thereof."

The Judge held that, from the clauses of the deed of mortgage, the parties intended that, on the expiry of the six months' notice, after default in payment of interest on any of the dates on

1870

SARASIBALA

DEBI v.

which interest was stipulated to be paid in the deed, either sale or SRIMATI

foreclosure proceedings might be commenced by the plaintiff

against the defendants. On the merits of the case he decided in NAND LAL favor of the plaintiff, and passed a decree accordingly. SEN.

The defendants appealed to the High Court.

Baboo Khettranath Bose (Baboos Aushutosh Chatterjee, Jadab Chandra Seal, and Amarendarnath Chatterjee with him) for the appellants, contended that the suit was premature. Under the terins of the deed, the amount secured thereby would not fall due before 4th September 1868; therefore, under Regulation XVII of 1806, the defendants are entitled to one year's grace from notification after that date, and not from 4th October 1866 only.

Mr. Paul, on the same side, contended on the merits of the case.

Mr. Woodroffe (Baboo Annada Prasad Banerjee with him), for the respondent, contended that the mortgage deed being in the English form was not one which fell within the operation of Regulation XVII of 1806; that, by the terms of the deed, the plaintiff, after notice given, could, on the expiration of six months, after default in paying interest, take proceedings for sale or foreclosure; and that the plaintiff was at least entitled as mortgagee to possession of the premises.

The judgment of the Court was delivered by

PHEAR, J. (who after shortly stating the facts proceeded) :It is obvious that, neither on the 4th December 1866, when the petition was presented to the Judge of Chittagong, nor on the 15th April 1868, when this suit was instituted, had the period elapsed which, by the mortgage deed, was stipulated for the repayment of the principal sum secured ; and, therefore, the question iminediately arises, whether or not the suit is on that account premature ?

If the Zilla Court was at liberty, and had the machinery to deal with this matter precisely upon the principles which govern the English Court of Chancery, the facts of the case are possibly such as would give the plaintiff a right of suit,

1870

SRIMATI SarasIBALA

DEBI

Sen.

a

even before the expiration of the time agreed upon for the repayment of the principal debt (1); for whenever that has occurred by reason of which the mortgagor has lost his right under the deed to call for a re-conveyance of the property, and Naxn Lal he can only get back the mortgaged premises by virtue of the right of redemption which the Court of Equity still preserves to him, then also that Court allows the mortgagee to come in and insist that the mortgagor shall elect between the exercising of this right of redemption and being foreclosed. But we think that this mortgage transaction, notwithstanding that it wears a completely English aspect, falls within the operation of Regulation XVII of 1806. It is in all respects parallel with the mortgage common in this country, which is effected by means of a bill of absolute sale, together with a contemporaneous ikrar for reconveyance, and mortgages of this sort have always been treated as being subject to the Regulation. The words "condi“tional sale,” as explained by the preamble, are broad enough to cover them, and there is no doubt that they are especially within the mischief against which the enactment was directed. This being so, the mortgagee can only obtain a foreclosure biy following the procedure which is laid down by section 8 of the above mentioned Regulation. And although there is some ambiguity in the words of that section relative to the time when the mortgagee may first prefer his petition for foreclosure, this is cleared up by reference to the previous section. The last clause of the 7th section runs thus :

“ The whole of the provisions contained in section 2, Rega“lation I of 1798, and section 12, Regulation XXXIV of 1803,

as applied therein to the stipulated period of redemption, are “ declared to be equally applicable to the extended period of

one year granted for an equitable right of redemption by this Regulation.” This makes it evident that the year of grace, commencing as it does with the notification which follows on the mortgagee's application for foreclosure, is intended by the Legislature to be additional to the period which is stipulated for redemption in the mortgage contract; and, therefore, it follows

(1) See Burrowes v. Molloy, 2 Jo. & La., 1 ; and Davidson's Precedents and La., 521; Edwards v. Martin, 25 L. J., Forms in Conveyancing, Vol. II, p. 536, Ch., 284; Roddy v. Williams, 3 Jo. &

1870

SRIMATI SARASIBALA

DEBI

SEN.

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that the application itself cannot be made before the expiration of that“ stipulated period.”

Now the “ stipulated period” of redemption referred to by the Nand Lal Legislature in this Regulation appears to us to be the whole

period prescribed by the mortgage contract for the performance of the conditions, upon the fulfilment of which the mortgagor is to be entitled to a reconveyance. We do not think that it in any case means less than this, or depends upon whether the mortgagor duly performs all those conditions or not.

We see no reason for supposing that the Legislature by these words spoke, not of the period of redemption originally specified in the contract (as the words themselves certainly imply), but merely of the shorter period during which the mortgagor by performance of the conditions may have preserved his strict right to redeem under the contract.

From the very object of the Regulation, it is obvious that the framers of it had expressly in view the case of a mortgagor who fails to perform the conditions necessary to give him the contract right to redeem; and if they thought of the “ stipulated

0 period ” as a period terminating on the first default of the mortgagor, they would surely have used some other expression than this to convey their meaning.

According then to our view, in the case before us, the “ stipulated period ” did not expire until the 4th September 1868, and consequently both the presenting of the petition for foreclosure, and the filing of this plaint, occurred before the mortgagee had any right to take a single step towards foreclosing the mortgagor's equity of redemption. All the proceedings in this matter are, therefore, inoperative; the suit is without legal foundation, and must be dismissed.

The plaintiff's counsel has argued that the plaintiff is at least entitled, under the terms of the mortgage, upon the facts which have happened, to obtain possession as mortgagee of the premises in suit, but this is a cause of action entirely distinct from that upon which he has sued, and we think he ought not now to be allowed to deviate from his plaint.

The decree of the Judge is reversed, and the plaintiff's suit is dismissed. Each party will pay his own costs in both Courts.

Appeal allowed.

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