A mortgagor is not in law entitled to redeem a usufructuary mortgage before the expiry of the due date of payment, subject to any contract to the contrary.

R.K.Choudhary, J.

1. This appeal by the defendants second party arises out of concurrent decisions of the courts below decreeing the suit of the plaintiff-respondent No. 1 for declaration of his title and redemption of a usufructuary mortgage bond dated 13-7-1907.

2. The case of the plaintiff in short is as follows: One Hemen Missir had two sons, Jhan-gat Missir and Chhathu Missir. The plaintiff is the grand-son of Jhangat Missir. Chhathu died issueless. On 13-7-1907, Chhathu executed a usufructuary mortgage bond for Rs. 300 in favour of Lakshmi Prasad, brother of defendant No. 1 and father of defendants 2 and 3, mortgaging certain lands described in Schedules 1(ka) and 1 (kha) of the plaint. The due date of payment under the terms of the mortgage deed was after 60 years. Chhathu was separate from Jhangat and Schedule 1 (ka) property belonged to Jhangat which was ultimately inherited by the plaintiff as being his grand-son. The property described in Schedule 1 (kha) belonged to Chhathu on whose death the same also was inherited by the plaintiff.

Chhathu Missir was a simpleton and was always in want. Taking advantage of this condition of Chhathu Missir, the aforesaid Lakshmi Prasad got the said usufructury mortgage deed executed in respect of the properties described in the above two schedules although he had no concern with the property appertaining to Schedule 1 (kha). Chhathu Missir did not understand the implications of the terms of the mortgage deed specially the long terms of redemption, and the mortgage bond itself was brought into existence by undue influence and coercion. Subsequently, in order to create evidence, defendants 1 to 3 fraudulently sold some of the properties under the mortgage to the defendants second party. There were trees on the mortgaged properties and the defendants first party cut away some of them and misappropriated the same. On these facts the plaintiff prayed for declaration of his title and for redemption of the usufructuary mortgage with a right to have a set off of the price of the trees cut away by the defendants first party.

3. The suit was contested by defendants 4 to 6 of the defendants second party, namely, the transferees of some of the mortgaged properties from the defendants first party. They contested the suit on the grounds, inter alia,

(1) that the plaintiff was not the heir of Chhathu Missir and had no concern with Schedule 1 (ka) or with Schedule 1 (kha) property;

(2) that Chhathu Missir executed the usufructuary mortgage bond after understanding all the implications and no fraud, undue influence or coercion was practised in the execution of the same;

(3) that the defendants second party were in possession of the property purchased by them as vendees and not as mortgagees and

(4) that, at any rate, the suit for redemption was premature as having been brought before the expiry of the terms of the due date of payment, namely, sixty years as stipulated in the mortgage bond.

4. The courts below concurrently found

(1) that the plaintiff is the heir of Chhathu Missir as alleged by him and inherited his properties after his death;

(2) that both Schedules 1 (ka) & 1 (kba) properties belonged to Chhathu Missir & were in possession of the defendants first party as well as the defendants second party as being mortgagees; and

(3) that although the due date of payment had not expired, the plaintiff was entitled on account of the conduct of the defendants to redeem the mortgage before the expiry of the said date on payment of the mortgage dues after deducting the amount of Rs. 30 as being the price of the trees cut and appropriated by the mortgagees. On these findings the suit of the plaintiff was decreed and the defendant second party being thus aggrieved have come up to this court in second appeal.

5. The only point that has been, argued before me by Mr. Thakur Prasad on behalf of the appellants is that the suit for redemption could not be maintainable before the expiry of the due da