WATSON,J. - (1.) THIS suit was brought in May, 1888, before the First Subordinate Judge of the 24-Pergunnahs, by the leading Respondent, Gunga Bahu Debi, hereinafter referred to as "the Respondent," for redemption of immoveable estate which she mortgaged with the consent of her husband, in the year 1862, to Kishori Mohun Hoy, who is an Appellant along with other members of the joint family to which he belongs. The main question raised by the appeal is, whether the equity of redemption has been extinguished by certain proceedings in the year 1864, at the instance of the mortgagee, bearing to be in pursuance of the provisions of Section 8 of the Bengal Regulation No. XVII. of 1806. The Subordinate Judge held that these proceedings were not in conformity with the terms of the Regulation, and were therefore ineffectual; and on appeal to the High Court his decision was affirmed by O'Kinealy and Ameer Al, JJ.
(2.) ABOUT the year 1844, the Respondent obtained from the Board of Revenue a Government grant of 18,600 bighas of waste land in the Sunderbuns, upon an improving lease. It was made a condition of the grant that one-eighth of the land should be cleared and fit for cultivation at the end of five years, one-fourth at the end of ten, one-half at the end of twenty, and three-quarters at the end of thirty years, each of these periods being reckoned from the 1st day of May, 1844. On the failure of any one of these conditions the whole interest of the grantee was to be forfeited, and the land was to revert to Government. In 1862 the extent of land already cleared and cultivable appears to have been in excess of what was required by the terms of the lease. On the 16th of May in that year the Respondent borrowed the sum of Rs. 25,000 from the Appellant Kishori Mohun Boy, who was the eldest of three brothers forming an undivided Hindu family; and on the same day she executed, for the security of the lender, (1.) a deed of mortgage or conditional sale of her interest in the said 18,600 bighas; (2.) a penal bond for Rs. 50,000; and (3.) warrants of attorney to enter up judgment in ejectment on the mortgage, and judgment upon the money bond. The only one of these documents to which it is necessary to make special reference for the purposes of this appeal, is the deed of mortgage or conditional sale.
(3.) BY the terms of that deed the land was conveyed subject to the proviso for redemption that if the grantor or her representatives should, on the 16th day of May, 1865, pay to Kishori Mohun Roy, or his representatives, the principal sum of Rs. 25,000, with interest half-yearly at the rate of 12 per cent, per annum from the date of the deed, and also all revenues, rates, and taxes as the same fell due, together with all costs incurred by the mortgagee in respect of the deed and of the bond and warrants to confess judgment, the said Kishori Mohun Boy, or his representatives, should execute a reconveyance of the land to the grantor or her successors. It was further covenanted that, in the event of default being made in the payment of termly interest, or in the fulfilment of the other conditions stipulated, "the whole of the principal moneys and interests hereby secured shall immediately become due and payable"; and, in that case, the said Kishori Mohun Roy and his heirs and successors were authorized to enter into possession, and, whether in or out of possession, to sell the whole or any part of the land conveyed, they accounting to the mortgagor and her representatives for any surplus remaining after satisfaction of their debt and other lawful claims.;