- (1.) THIS appeal is directed against the judgment of the Civil Judge, Jodhpur, dated the 31st March, 1952, in a suit for redemption of mortgage.
(2.) THE plaintiff appellant Misrimal and other are the assignees of one Mst. Magi who was the legal representative of Ganeshmal. Ganeshmal give a mortgage in respect of two shops situate in Bilara to Chunnilal, Ganeshmal and Ratanraj by a deed dated Chait Vadi Svt. 1970,for a sum of Rs. 1451/ -. THE defendant respondent is an assignee from the mortgagees. THE mortgage was usufructuary and possession on the two shops had been handed over to the mortgagees and the defendant is now in possession thereof by virtue of his having stopped in the shoes of the original mortgagees. THE case of the plaintiffs was that the real consideration which has been advanced by the mortgagees to Ganeshmal was a sum of Rs. 1036/- only and that it appeared from the mortgage deed itself that the balance of Rs 415/- was stated therein as "teekha Aank" and therefore, was nothing but fictitious and so the plaintiffs were entitled to redeem the shops on payment of Rs. 1036/ only. THE plaintiffs also stated that they had given a notice to the defendant to allow redemption on payment of the above mentioned amount but the defendant paid no bead and, therefore, they were compelled to bring the suit. The defendant resisted the suit on a number of grounds. He pleaded that he had no knowledge of the assignment in favour of the plaintiffs by Mst. Mangi nor did he admit that the latter was the owner of the mortgaged properties. He further pleaded that redemption could be allowed on payment of the entire sum of Rs. 1451/- entered in the deed and not Rs. 1036/- and lastly the contended that he was further entitled to receive a sum of Rs. 673/10/6 which had been spent by way of repairs to the shops under mortgage. The trial court came to the conclusion that a sum of Rs. 1036/- only had been advanced by the defendant's predecessors-entitle and, therefore, defendant could not claim Rs. 1451/- as redemption money. That court further found that the defendant had failed to prove the money alleged to have been spent on repairs and it, therefore, decreed the plaintiffs' suit for redemption on payment of Rs. 1036/- only. As to costs the trial court directed that the plaintiffs were entitled to receive them from the defendant. The latter then went up in appeal and the learned Civil Judge modified the decree of the trial court and held that the plaintiffs must pay the entire sum of Rs. 1451/- which was entered in the mortgage deed as redemption money and further that the defendant appellant's costs would be paid by the plaintiffs proportionately in his court and entirely so as far the lower court was concerned. Hence this second appeal. It has been strenuously argued before this Court on behalf of the plaintiffs appellants that the lower appellate court had fallen into error in allowing redemption by payment of Rs. 1451/- instead of the sum of Rs. 1036/-which was directed to be paid by the trial court. The first question, therefore, to decide in this appeal is whether the defendant is entitled to receive the entire sum of Rs, 1451/-as redemption money. It is Common ground between the parties that the actual consideration advanced by the original mortgagee to the original mortgagor was a sum of Rs. 1036/-only although the deed itself was executed for the larger sum of Rs. 1451/ -. While giving the details of the consideration, it has been clearly mentioned in the deed of mortgage (Ex. P-l) that a sum of Rs. 900/- was due to the mortgagees by way of a previous mortgage and repairs, that Rs. 81/- were outstanding in the cash khata and a further sum of Rs. 55/- have been paid in cash and this amounted in all to a sum of Rs. 1036/- only. It was further stated that a sum of Rs. 415/-was being entered in the deed as Teekha Aank thus the deed was executed for a sum of Rs. 1451/ -. Ganeshmal further admitted before the Registrar, Bilara that this shop had been mortgaged by him to Ganeshmal, Ratanraj and Chunilal for a sum of Rs. 1451/-, As already stated above, the mortgage was of a usufructuary character so that no interest was payable on the mortgage money and the mortgagees were left to appropriate the rent of the mortgaged property in lieu therefore In these circumstances the question for determination is whether the defendant can claim payment of the entire sum of Rs. 1451/- as a condition precedent to the redemption of the mortgaged properties. It is strongly contended on behalf of the appellants that the deed was without consideration to the extent of Rs. 415/- which had never been paid by the mortgagees and that the expression teekha aank clearly was an euphemism for "fictitious consideration" in the circumstance of the case, and that the defendant was, therefore, not at all entitled to receive any such amount in addition to the sum of Rs. 1036/- which had admittedly been advanced by the original mortgagees to Ganeshmal. On the other hand learned counsel for the respondent vehemently argued that the original mortgagor had agreed to redeem the mortgaged properties on payment of Rs. 1451/- even though the actual consideration passed was to the extent of Rs. 1036/- only and, therefore, the plaintiffs could redeem the mortgaged properties on payment of the entire sum of Rs. 1451/- only. Learned counsel placed reliance in support of his contention on Lala vs. Harijan (1) and Webster vs. Cook (2 ). The facts in the first case were that the plaintiff had executed a mortgage in favour of the defendant for a sum of Rs. 100/- only but it was stipulated in the deed that redemption would be allowed, among other things, on payment of the principal sum and half again, that is, on payment of Rs 150/-by way of what is, in Oudh, commonly known as Deorha. It was held by a learned single Judge that the provision for the payment of Deorha was valid and that it was neither a clog on the equity of redemption nor a stipulation by way of a penalty It appears from a perusal of the judgment that the provision for the payment of Deorha in Oudh had the approval of a series of decisions prior to that date. The other case referred to above, namely, Webster vs. Cook (2), has also been referred to in that case. There the defendant had agreed to advance to the plaintiff 1000 for which the plaintiff agreed to pay to the defendant £ 3300 within three months after the death of a certain lady and until her death interest at 1 per cent, per annum and after her death at 10 per cent per annum until the sum was paid. It was further agreed between the parties that plaintiff will have a right of redemption on payment of £1500 and interest on the 27th August, 1865, or on payment of £1850 on the 17th August, 1866. It was held that the defendant was entitled to insist upon the performance of the agreement entered into between the parties. The Lord Chancellor observed in the course of his judgment that the interest exacted by the defendant was certainly of an excessive kind and was calculated to create a prejudice against him. But, it was further observed, that the plaintiff was not a young man and was fully capable of taking care of himself and he had previous dealings with the defendant and, therefore, it was held that no interference with the transaction was called for, and a decree was passed in accordance with the terms thereof. With great respect, it appears to me that these cases do not have any application to the case before me. In both these cases the document was executed for the amount advanced but the borrower had further given an undertaking to pay more than what he had received. In the present case, however, the document has been executed expressly for the consideration which actually passed and also for the balance of the consideration which had never been advance and there is no such condition that although the document had been executed for a particular sum only, the redemption would be allowed on a larger sum. It further appears to me, with great respect, that the English case can have no application because on the same facts if it arose in India, the decision may have to be different in view of sec. 74 of the Contract Act. On a careful consideration of these authorities, therefore, I have arrived at the conclusion that they are of no assistance to the defendant respondent. The true conclusion appears to me to be this that the mortgagor had received a sum of Rs. 1036/-only from the mortgagees and the further amount of Rs. 415/- had been merely gratuitously or fictitiously entered therein and, therefore, there was failure of consideration in respect of the latter amount, and the mortgage was valid to the extent of Rs. 1036/- only. In India we have our own law of contracts and I think it cannot be disputed that an agreement without consideration is wholly void, and that where there has been a failure of part of the consideration, such as where a mortgagee makes a default in paying the entire consideration undertaken to be paid by him and pays only a part of it, the correct principle, in my humble judgment, is that the mortgage should be held good to the extent of the consideration that has passed. This proposition seems to be supported by authorities. The first case to which I may refer in this connection is Munshi Bajrang Sahai vs. Udit Narain Singh (3 ). The facts there were slightly different but the principle of the decision is, in my opinion, quite clear and fully applicable to the facts of the case in hand. There the mortgage had been executed for Rs. 500/- and the whole of the consideration had not passed but only a part thereof. The subordinate court held that the mortgage was not enforceable. On appeal to the High Court, this view was not approved and it was held that the mortgage was perfectly good to the extent of the money actually advanced and the plaintiff was entitled to a decree upon that footing It would appear that the case before me is more or less, a converse of the case cited above. The next case to which I would refer is Rajai Tirumal Raju vs. Pandla Muthial Naidui (4 ). The plaintiffs in that case executed in favour of the defendants a usufructuary mortgage deed for Rs. 24,600/ -. The sum of Rs. 24600/- was alleged to have been made up of Rs. 17000/-odd which were due on account of certain decrees and it was contended that the amounts alleged to have been due on the said decrees were larger than the amounts actually due thereunder. It was contended on behalf of the defendants that as they had been in possession for more than twelve years under the usufructuary mortgage for Rs. 24,600/-, they had acquired a prescriptive title to all the benefits as set forth in the mortgage and that the plaintiffs were not entitled to redeem except on that footing. The District Judge upheld that contention. On appeal it was held by the High Court that where part of the consideration is void or fails or the mortgagee makes default in paying it, the mortgage should be held good to the extent of the consideration that has validity passed but no more. It was further held that as the mortgagees were entitled to remain in possession as mortgagees, no matter that the real consideration was less than that mentioned in the deed, time could not run in their favour for the question of a larger interest by their assertion of it to the knowledge of the mortgagor. It was also observed that the mortgagor having a subsisting right to recover possession by redemption for a period of 60 years under Art. 148 of the Limitation Act, the mortgagee cannot be held to have acquired any larger right by prescription before the statutory period expires. As the case of the defendant cannot be put on a higher footing than that of the case cited. I respectfully concur in the principle deduci-ble from it and hold that the mortgage deed in the present case is valid to the extent of Rs. 1036/- only and that for the balance of the amount mentioned in the deed, namely, Rs. 413/ , the mortgage fails and is inoperative. In this view of the matter, it must follow that the plaintiffs are entitled to claim redemption on payment of Rs. 1026/- only. The next question relates to costs. As already stated above, the trial court had burdened the defendant with the plaintiffs' costs. On appeal the lower appellate court set aside that order and directed that the plaintiffs do bear the entire costs of she defendant in the trial court and to the extent of the defendants success in the lower appellate court. It appears to me that much of the difficulty in this case arose because of the peculiar terms of the mortgage deed; the plaintiffs sought to redeem the mortgaged properties on payment of Rs. 1036/- only which, as I have held, was the only real consideration for the mortgage deed, whereas the defendant resisted the redemption tooth and nail except on payment of the entire sum mentioned in the deed, namely, Rs. 1451/-This question was not free from difficulty and has been differently answered at various stages of the litigation. The defendant further claimed costs of repairs which have been disallowed by both the courts below. Having regard to these and the other circumstances of the case, I am of opinion that the requirements of justice would be answered best if parties are left to bear their own costs of litigation throughout, and I order accordingly The result is that I partially allow this appeal, set aside the judgment of the court below and hold that the plaintiffs appellants will be entitled to redeem the suit properties on payment of Rs. 1036/- only and that the parties shall bear their own costs through out. As it appears that the plaintiffs appellants have already deposited Rs. 1036/- in court, a final decree will be drawn up accordingly and the defendant shall receive the aforesaid money and put the plaintiffs in possession of the properties under mortgage. Learned counsel for the respondent asks for permission to file a letters patent appeal Allowed. . ;