JUDGMENT

1. This is another suit for sale by another plaintiff Debi Prasad under the same circumstances as are mentioned in Bibi Batul v. Kidarnath A.I.R. 1925 Oudh 462, decided today by this Bench.

2. We have already given our reasons in that judgment for holding that the lady defendant Mt. Bibi Batul understood the contents of the power-of-attorney executed by her in favour of her son and fully realised the effect of her action. We have also held that Zakir Husain was entitled to mortgage the lady's property for her benefit.

3. The only question which remains for decision here is of interest. The mortgage-deed in suit allows extortionate interest at Rs. 2-8-0 percent. per mensem with six monthly rests, and a sum of Rs. 300 borrowed on 29th December, 1908, had swollen to the enormous proportion of Rs. 10,447-1-0 at the time of the institution of the suit on 23rd December, 1921. We regret that as the law stands at present we are unable to grant the defendant-appellant any relief. In Channu Lal v. Mt. Raj Kuar (1918) 20 #18;O.C. 318, a learned Judge of this Court held that mere excessive rate of interest did not entitle this Court to grant relief to a person who had contracted to pay that rate. In Sheikh Fazal Azim v. Lala Girdhari Lal A.I.R. 1923 Oudh 8, another Judge of this Court laid down that a Court had no power to reduce the contract rate of interest solely on the ground that it was excessively apart from any question of undue influence or fraud. The last ruling is supported by a Privy Council decision, not mentioned there. That decision is Bala Mal v. Ahad Shah (1918) 16 A.L.J. 905. Their Lordships held that questions as to undue influence and unconscionable bargain and dealings with expectant heir must be decided on the provisions of the Indian Contract Act, and these alone and that the principles on which the English Courts of equity deal with similar questions are entirely inapplicable. On the same principles was founded another judgment of their Lordships of the Privy Council in Raghunath Prasad v. Sarju Prasad A.I.R. 1924 P.C. 60.

4. In the grounds of appeal to this Court no question of undue influence was raised. The grounds dealing with the question of interest are Nos. 6 and 7 where it is merely alleged that the stipulated interest was hard, extortionate and unconscionable and that the plaintiff was not entitled to recover the entire amount thereof. Looking into the facts also, there is no cause to hold that undue influence was exercised by the plaintiff on Zakir Husain. It was pointed out in the ruling of the Privy Council quoted above from 51 Indian Appeals that a party to a contract cannot avoid it on the ground of undue influence unless he proves that the other party was in a position to dominate his will. No such position is made out here. In fact the allegation in para. 16 of the written statement was vague and Zakir Husain himself did not enter the witness-box. Undue influence was alleged in that para, but no detail thereof was given. The only fact mentioned was that Zakir Husain was at the time of the mortgage indebted to one Behari Lal, brother of the mortgagee. This did not put the mortgagee in a position to dominate the will of Zakir Husain. We hold that the appellant must pay the entire interest.

5. Having regard, however, to the extortionate nature of the rate of interest we refuse to grant future interest and direct the parties shall bear their own costs of both the Courts. The decree of the lower Court shall be amended so far. A note shall be made that the plaintiff has undertaken to put up the villages for auction one by one and not all together. The appeal is otherwise dismissed.