ABDUL KADIR BEARI; BAGADE SHIVA RAO Vs. BAGADE SHIVA RAO; ABDUL KADIR BEARI

JUDGEMENT

(1.) There is evidence to support the District Judge s finding that Exhibit I is genuine, We are bound by that finding in second appeal. We are further of opinion that the District Judge is right in finding that the amount due under that document must be paid by the plaintiff, as well as the amounts due under Exhibits II and XI before be can redeem the property.

(2.) But we can find no grounds for not enforcing the terms of the contract evidenced by Exhibit I. It is not suggested that it was brought about by fraud or undue influence as defined in Section 16 of the Contract Act. It is pleaded before us that the. period of 30 years fixed for redemption is unreasonable and would not be enforced by a Court of Equity, but the 30 years expired in 1887, and it does not appear that the mortgagor, either before or since that time, ever wished to redeem. It is certainly no reason for not enforcing the terms of the contract. In the circumstances of this case, the Court has, in fact, no discretion. Dhanipal Das v. Raja Maneshar Bahksh Singh 33 I. A. 118 : 28 A. 570 : 4 C.L.J. 1 : 1 M.L.T. 205 : 3 A.L.J. 496 : 9 O.C. 188 : 8 Bom.L.R. 491 : 10 C.W.N. 849 : 16 M.L.J. 292. We are also of opinion that the value of the paddy payable under Exhibit I should be calculated according to the market-rate on the day when the account is made up for the purposes of drawing up the mortgage decree.

(3.) In the result, we must dismiss the plaintiff s appeal (No. 1717), and allow the appeal of the 1st defendant (No. 1182) with costs payable by the plaintiff to the 1st defendant throughout.