A breach of contract occurred due to the defendant's failure to fulfill their obligations.

Judgement

Consolidated Appeals (No. 6 of 1921) by special leave from two judgments and decrees (February 9, 1915, and June 19, 1918) of the Court of the Judicial Commissioner affirming two decrees of the Subordinate Judge of Kheri.

The sole question for determination was whether the appellant, the mortgagor under a deed dated June 9, 1908, had a right to redeem having regard to the terms of the deed which excluded the right at the time when it was sought to be exercised.

The terms of the mortgage and the material facts appear from the judgment of the Judicial Committee.

3 Law Rep. 49 Ind. App. 60 ( 1921- 1922) Mohammad Sher Khan V. Raja Seth Swami Dayal

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The Subordinate Judge, and on appeal the Court of the Judicial Commissioner, had held that having regard to the terms of the mortgage deed the mortgagor had not a right to redeem during the period of twelve years if the mortgagee had elected to go into possession for that period.

1921. Nov. 10. Upjohn K.C. and Dube for the appellant. The mortgage was a simple mortgage and was not an anomalous mortgage to which s. 98 of the Transfer of Property Act, 1882, applied. But whether it was so or not, the mortgagor had a right to redeem under s. 60 of that Act. Any provision to the contrary in the deed was a clog on the equity of redemption; it could not take away the statutory right given by s. 60. [Reference was made to Lingam Krishna Bhupati v. Maharaja of Vizianagram. (( 1911) 15 Cal. W. N 441.)]

De Gruyther K.C. and Parikh for the respondent. This was an anomalous mortgage to which s. 98 of the Transfer of Property Act applied. The rights of the parties are governed by the express terms of the contract as appearing in the deed; these terms clearly excluded the right to redeem in the circumstances in which the suit was brought.

Upjohn K.C. replied.

Dec. 9. The judgment of their Lordships was delivered by

SIR LAWRENCE JENKINS. These are consolidated appeals preferred by special leave of His Majesty in Council from two decrees dated February 9, 1915, and June 19, 1918, of the Court of the Judicial Commissioner of Oudh, which affirmed two decrees passed by the Subordinate Judge of Kheri on September 7, 1914, and April 17, 1916, in suits No. 234 of 1913 and No. 93 of 1915.

The question for determination is whether Mohammad Sher Khan, the mortgagor and appellant in both appeals, has a present right on payment of the mortgage money to redeem the mortgaged property. This has been decided adversely to him in both the lower Courts.

The mortgage is dated June 9, 1908. The sum of Rs.82,000 is recited to be due, and the mortgagor declares " Therefore I .... do hereby mortgage for five years " the immovable property there described. Then follow the terms.

Clause 1 provides for the payment of interest half-yearly at the rate of 9 ½ annas per cent, per month, for compound interest, in the event of default, and that " This system of payment of interest and of compound interest by six-monthly instalments will continue during the stipulated period as well as after that till redemption and payment of the entire amount."

Clause 2 is in these terms " After five years at the end of Jeth 1320 Fasli in the fallow season I shall pay at a time and in a lump sum the entire principal, interest and compound interest and redeem the mortgaged property."

Clause 3 provides " That if interest for four six-months be not paid in full, or if at the stipulated period, i.e., after five years, I do not get the mortgaged property redeemed on payment of the entire amount of principal, interest and compound interest, then in both cases the mortgagee will have the option either to take possession of the mortgaged property in lieu of the principal for a period of twelve years commencing from the date of entering into possession or to let his interest and compound interest run as usual, in which case I shall not raise the objection to the effect that the mortgagee did not take possession in order to let his interest accumul