Judgement

Appeal from a judgment and decree of the High Court (June 16, 1909) reversing a judgment and decree of the second Additional Subordinate Judge of the 24 Parganas.

The suit was instituted by the appellants to redeem two mortgages of 1848 and 1871.

In 1848 one Fazlul Karim mortgaged his zamindari and in 1850 conveyed it to Khodajanessa, his wife, as a gift. In 1853 she granted a patni lease of it under which there was a malikana amounting to over Rs.15,000 a year. After various immaterial proceedings, in 1870 an agreement was made between Khodajanessa and the then mortgagees by which the amount due upon the mortgage was to be discharged by annual payments out of the malikana.

In 1871 Khodajanessa executed a second mortgage upon the property in favour of a different mortgagee.

In 1873 the mortgagees under the mortgage of 1848 commenced a suit against Khodajanessa to enforce the agreement of 1871, A compromise was agreed to by the parties and a razinama drawn up.

Under the terms of the razinama the amounts due to both mortgagees was agreed and the mortgagees agreed to release the property from the mortgages upon Khodajanessa agreeing to execute deeds of absolute sale or transfer by which a certain proportion of the malikana should be transferred to each of the mortgagees, the balance to remain her property, free from incumbrances. It was also agreed that the mortgagees should get their names registered as proprietors of the proportions of the property to which they were entitled under this arrangement. The compromise was filed, and on November 28, 1873, a decree was made that the suit be decided in pursuance thereof. The terms of the compromise were not recited in the decree.

The compromise agreement was not registered and no transfers or conveyances were ever executed. It appeared, however, that all parties had given complete effect to its terms. Numerous transactions had taken place by the various parties on the basis of the property having been divided in the manner provided by the compromise. As instances of this, in 1875 Khodajanessa mortgaged the share reserved to her, the mortgage deed reciting the arrangement made by the compromise; again, in 1887, she made a deed of gift of that share, the deed of gift being attested by her sons. There had also been transfers of the interests of the mortgagees. In 1878 the respective mortgagees had caused their names to be registered as proprietors of their shares, and there had been registration of mutation of names in respect of subsequent transfers by them.

In 1908 the plaintiffs, as surviving heirs ar I representatives of Khodajanessa, instituted the present suit claiming to redeem the mortgages.

The defendants (respondents) pleaded that the suit was barred by limitation, that under the compromise of 1873 the mortgages had come to an end, and that the respective mortgagees had been in possession of their shares adversely to Khodajanessa and the plaintiffs. The Subordinate Judge made a decree for redemption. He held that the terms of the razinama not being incorporated in the decree and not being registered or stamped could not affect immovable property. He also held that the possession was not adverse.

The High Court allowed the appeal. The learned judges held that the mortgages of 1848 and 1871 were extinguished by the agreement and compromise of 1873 and that the right to redeem thereupon ceased to exist. It was accordingly not necessary to consider the question of limitation.

De Gruyther, K.C., and Dube, for the appellants. The original title of the respondents was as mortgagees, and the onus is upon them to show that the right to redeem is extinguished. The compromise agreement of 1873 was required to be registered by the Registration Act, 1871, s. 17, and not being registered under that Act it was not effectual to transfer any right in the property Pranal Annee v. Lakshmi Annee. (( 1890) L. R. 26 Ind. Ap. 101.) The decree did not embody the terms of the compromise, and