JUDGMENT S.N. Sahai, J. - This is a defendants appeal and arises out of a suit brought by the plaintiffs under Sec. 202 (c) of the U.P. Zamindari Abolition and Land Reforms Act (U.P. Act I of 1951), hereinafter referred to as the Act. The plaintiff's case was that their predecessor-in-interest had mortgaged with possession agricultural plots mentioned in list A at the foot of the plaint on the 13th of July, 1908 for a sum of Rs. 199/-. They had executed another mortgage bond on the 7th of September, 1909 in respect of the property mentioned in list B at the foot of the plaint in favour of the same defendant for a sum of Rs. 199/-. It was stipulated in the two mortgage deeds that redemption would take place after the expiry of fifty one years in respect of the first mortgage and after fifty-nine years in respect of the other. According to the plaintiffs, those terms were brought about by undue influence and amounted to a clog on the equity of redemption. It was further alleged that the aforesaid Act came into force in that area in which these disputed plots are situated on the 1st of July, 1954 and since then the status of the plaintiffs became that of Bhumidhars while the defendant became an Asami. It was further alleged that the plaintiffs had deposited the entire amount of both the mortgages in court and they were entitled to recover possession over the property mortgaged by the ejectment of the defendant. 2. The suit was contested on the grounds that it was not cognizable by the civil court; and that it was premature as the period of redemption provided in both the mortgages, had not expired. 3. In the trial court the plaintiffs gave up the plea that the periods of redemption given in both the mortgages operated as clog on the equity of redemption and the defendant gave up his plea that the suit was not cognizable by that court. The fact that the status of the plaintiffs was that of Bhumidhars and that of the defendant of Asami, was admitted by both the parties. The entire contest between the parties was confined in the trial court as well as in the lower appellate court, to the issue whether the suit was a premature one. 4.
The fact that the status of the plaintiffs was that of Bhumidhars and that of the defendant of Asami, was admitted by both the parties. The entire contest between the parties was confined in the trial court as well as in the lower appellate court, to the issue whether the suit was a premature one. 4. According to the plaintiffs, in view of the provisions of Sec. 202 clause (c) of the Act they were entitled to get possession over the property in spite of the period for redemption fixed in the two mortgage bonds. Clause (c) of Sec. 202 of the Act runs as follows:- "Without prejudice to the provisions of section 338, an asami shall be liable to ejectment from his holding on the suit of the landholder, on the ground- (c) that he belongs to the class mentioned in clause (d) of sub-section (1) of section 21 and the mortgage has been satisfied or the amount due has been deposited in court". 5. The words "or the amount due has been deposited in court" were added by Sec. 41 of U.P. Act XVI of 1953 with retrospective effect from July 1, 1952. According to the plaintiffs the words "amount due" signified only the amount of money payable on the date when the suit for ejectment was filed. The only thing required was the deposit of that amount. The other terms of the mortgage bond including any condition about any period for which the mortgage was to continue or about any particular time at which alone it was to be redeemed were entirely immaterial. For the defendant, however it is urged that the plaintiffs had no right to redeem either of the two mortgages as the periods fixed for redemption in those mortgages had not expired and the suit was therefore premature. It was contended that the right of the mortgagor to get possession over the property could arise only after the mortgage had been redeemed and redemption could take place only after the principal money has become due in accordance with the terms of the mortgage bonds. The 'amount due' it was urged therefore meant the amount payable for redemption according to the terms of the bonds.
The 'amount due' it was urged therefore meant the amount payable for redemption according to the terms of the bonds. Reliance was placed in this connection upon Sec. 60 of the Transfer of Property Act which lays down that- "At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee, where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor......." 6. It is clear from an examination of the terms of mortgage deeds that the properties were mortgaged with possession for fixed periods of 51 and 59 years. The question for consideration is, whether the mortgagors are entitled to redeem them earlier. Admittedly the periods of the respective mortgages have not yet expired. According to both the courts below since the defendant has become an Asami and the amount due has been deposited, the plaintiffs are entitled to dispossess them. Neither of the two courts below appear to have applied their minds to the question as to what was the meaning of the words "amount due". According to the provisions of the Transfer of Property Act, the provisions of which have not been abrogated by the U.P. Zamindari Abolition and Land Reforms Act, the meaning would be "the amount payable at the time when the time fixed for redemption has expired". In the case of Lasa Din v. Gulab Kunwar, 1932 A.L.J. 913 the observations of the Privy Council were summarised in the head note as follows:- "A mortgage deed provided that the principal sum would be paid within six years and the stipulated interest every year and further that in case of default in punctual payment of interest the mortgagee shall, within the expiry of the stipulated period of six years, have power to realise the entire mortgage money and the remaining interest and compound interest due to him in a lump sum through court by sale of the mortgage property. There was default in payment of interest, but the mortgagee did not avail himself of the option given to him.
There was default in payment of interest, but the mortgagee did not avail himself of the option given to him. He sued upon the mortgage after twelve years from the date of such default but within twelve years from the date of the expiry of the stipulated period of six years; Held, that the suit was within time, Money became due within the meaning of Article 132 only after the expiry of six years." 7. The same view was taken in the case of Shiam Lal v. jagdamba Prasad, 25 A.L.J. 1051=A.I.R. 1928 All.131 The facts of the case were that the mortgage was for a term of fifteen years and the mortgagor was given a right to redeem the mortgage before the expiry of that period, provided he paid the mortgage money from his own pocket and not by raising the same by a mortgage or a sale of the mortgaged property. Plaintiff purchased the equity, of redemption and deposited the mortgage money in court under the provisions of Sec. 83 of the Transfer of property Act, and as the mortgagee did not withdraw the money, and consent to the redemption of the mortgage, he filed a suit for redemption before the expiry of the term in the mortgage. It was held that: "The mortgage sought to be redeemed was for a period of fifteen years and no option was given to the mortgagor to redeem the mortgage under any circumstances before the expiry of that period." 8. A similar view was taken by another Division Bench of this Court in the case of Ram Sarup Ahir v. Nageswar Tewari, 1930 A.L.J. 1129=AIR 1930 Allahabad 444 It was held in the case of Durga Prasad Chamaria v. Mario Galstaun, AIR 1955 Calcutta 194 by a Division Bench, relying upon the case of Lasa Din v. Gulab Kunwar, 1932 A.L.J. 913 That: "The mortgage money does not become due until both the mortgagor's right to redeem and mortgagee's right to enforce his security have accrued. 'In other words, the mortgage money would become due when both the rights of the mortgagee to sue and of the mortgagor to redeem coalesce'." 9. In my opinion" therefore the amounts of the two mortgage bonds had not become due by the date on which the plaintiff's suit was filed.
'In other words, the mortgage money would become due when both the rights of the mortgagee to sue and of the mortgagor to redeem coalesce'." 9. In my opinion" therefore the amounts of the two mortgage bonds had not become due by the date on which the plaintiff's suit was filed. If the amount had not become due at all the plaintiffs could not claim to have fulfilled the requirements of clause (c) of Sec. 202 of the Act as the mortgages had neither been satisfied nor had the amount due been deposited. The defendant was consequently right in contending that the suit was premature. 10. I accordingly allow this appeal, set aside the decree passed by the two courts below and dismiss the plaintiff's suit with costs throughout. Leave to file Special Appeal is granted.