Ram Lal v. Musammat Genda — 1942 DIGILAW 13 (ALL)

JUDGMENT Allsop and Verma, JJ. - This appeal arises out of a suit for the sale of certain property on the basis of a mortgage. There was an alternative relief for foreclosure, but it is not suggested now that a decree for foreclosure could be passed and that is a matter which no further concerns us. The learned judge of the lower Court passed a simple money decree in favour of the Plaintiff Appellant and the main question in issue before us is whether instead of a simple money decree he should have passed a decree for the sale of the property. The mortgage with which we are concerned was executed by Mustt. Genda Bibi and her husband Banke Behiri Lal in favour of Ram Lal, the Plaintiff Appellant By the deed the mortgagors mortgaged a house in order to secure a sum of Rs. 6,000 advanced to them. This was a usufructuary mortgage. The mortgagors said that they had put the mortgagee into possession of the house and that he should retain possession for a period of three years. There were certain other covenants. The mortgagors undertook to keep the house in proper repair and it was agreed, if they did not do so, that the mortgagee might sue to recover the mortgage money. The mortgagors also guaranteed that there was no prior charge upon the property and there was a covenant that the mortgagee might recover the mortgage money if it was found that (sic) was such a charge. Finally the mortgagors agreed to pay the entire mortgage money to the mortgagee within a period of three years with interest at a certain rate. They agreed that the mortgagee would have a right to sue for his money if they did not make the payment within the fixed period. It appears that the mortgagee on the date when the deed of mortgage was executed in his turn executed a lease of the house in favour of Banke Behari Lal. Subsequently there seems to have been some difficulty about the recovery of rent under the terms of the lease and the mortgagee instituted suits against Banke Behari Lal. The last of these was a suit for ejectment as a result of which a decree J or the ejectment of Banke Behari Lal was passed. Subsequently there seems to have been some difficulty about the recovery of rent under the terms of the lease and the mortgagee instituted suits against Banke Behari Lal. The last of these was a suit for ejectment as a result of which a decree J or the ejectment of Banke Behari Lal was passed. When the mortgagee sought to execute this decree he was met by an objection on the part of Mustt. Genda Bibi, who said that she was in possession as the owner of the house and not in her capacity as the wife of the lessee. Her objection was sustained and it does not appear that the mortgagee instituted any suit in order to obtain a declaration that she was not entitled to remain in possession of the house. The mortgagors have not appeared before us and are not represented. The appeal is contested by subsequent mortgagees of the house, who are naturally interested in preventing a decree for sale being passed on a mortgage which is prior to theirs Learned Counsel for the Plaintiff Appellant has argued in the first place that his client is entitled to a decree for sale under the provisions of Sections 68(a) and 67 of the Transfer of Property Act. He has, however, very properly brought to our notice a decision of a Full Bench of this Court in the case of Kanhaiya Prasad v. Hamidan 1938 A.W.R. (H.C.) 403 : ILR 1938 All 714. There was a previous decision of this Court in the case of Kashi Ram v. Sardar Singh (1905) 28 All 157 that a mere covenant to repay the mortgage money did not take what would otherwise have been a usufructuary mortgage out of that category. I This decision has removed the possible effect of the decision in Jafar Husen v. Ranjit Singh (1898) 21 All 4 it being held in the later case that the former had been decided upon its special facts The Full Bench case in Kanhaiya Prasad v. Hamidan 1938 A.W.R. (H.C.) 403 : ILR 1938 All 714 maintained the decision in the previous case of Kashi Ram v. Sardar Singh (1905)28 All 157 and consequently we must hold that the mortgage with which we are dealing is purely a usufrutuary mortgage. Its terms are those of an ordinary usufructuary mortgage with the addition of a covenant to repay the mortgage money in a certain time. It was held also in the case of Kanhaiya Prasad v. Hamidan, 1938 A.W.R. (H.C.) 403 : ILR 1938 All 714 that the mortgaged property can not be put to sale when there is a usufructuary mortgage together with a mere covenant to pay the mortgage money without any hypothecation. In the mortgage-deed with which we are dealing there is nothing to suggest that the mortgagors intended that the mortgage money might be recovered by sale of the mortgaged property. They mere gave the mortgagee the right to institute a suit for the recovery of his money in certain circumstances. We consider, therefore, that the learned Judge of the lower Court was perfectly right in holding that the mortgagee was entitled only to a simple money decree and not to a decree for sale of the mortgaged property. 2. Learned Counsel has also placed another argument before us. He has said that the history of the relations between the mortgagors and the mortgagee shows that the latter was deprived of his security by the assertion of Mustt. Genda Bibi of her right to remain in possession of the property as its owner and that the mortgagors failed to secure the possession of the property to the mortgagee without disturbance by the mortgagors. He argues, therefore, that he was entitled to recover the mortgage money under Clauses (b) and (c) of Section 68 of the Transfer of Property Act and he relies upon the decision of their Lordships of the Privy Council in the case of Lal Narsingh Partab v. Yaqub Khan 4 (1929) 4 Luck. 362, for the proposition that a mortgagor who has secured the right to recover the mortgage money under the provisions of Clauses (b) and (c) of Section 68 of the Transfer of Property Act is entitled to a decree for the sale of the mortgaged property under the provisions of Section 67 of the Act. 362, for the proposition that a mortgagor who has secured the right to recover the mortgage money under the provisions of Clauses (b) and (c) of Section 68 of the Transfer of Property Act is entitled to a decree for the sale of the mortgaged property under the provisions of Section 67 of the Act. In that case their Lordships had held that the mortgage which was before them was a combination of a usufructuary and a simple mortgage and the result is that the pro-Vision of Section 67 that a usufructuary mortgagee as such is not entitled to institute a suit for sale of the property did not require consideration In that case the mortgagee was seeking to recover in money under that part of the mortgage which was simple. Learned Counsel has, however, pointed out that the Full Bench of this Court in the case of Kanhaiya Prasad v. Hamidan 1938 A.W.R. (H.C.) 403 : ILR 1938 All 714 gave a usufructuary mortgagee a decree for sale purporting to follow the decision of their Lordships, in the case of Lal Narsingh Partab v. Yaqub Khan 4 (1929) 4 Luck. 362. We might consider ourselves bound by the decision of the Full Bench of this Court in that case, but the real answer to the Appellant upon this point is that he never made a case in the trial Court that he was entitled to recover his mortgage money upon the ground that he had been deprived of his security or that this possession of the property had not been secured to him. His case was clearly based upon the covenant of repayment which would entitle him to a decree for the money under the provisions of Clause (a) of Section 68 of the Transfer of Property Act. Learned Counsel has urged that we should not proves his client from obtaining a decree for sale upon a (sic) technical (sic) mission in the (sic). It seen to us however, that this matter is not on of (sic) technicality. Learned Counsel has urged that we should not proves his client from obtaining a decree for sale upon a (sic) technical (sic) mission in the (sic). It seen to us however, that this matter is not on of (sic) technicality. If was were now to give the Plaintiff Appellant a decree for sale upon the ground that he had been deprived of his security or possession of property, we should be allowing him to change the whole nature or his claim all it is possible that we might be coming considerable injustice to the competing Respondents who are subsequent it mortgagees, as we have already sated and are not the mortgagors themselves who were parties to the various transactions between them and the mortgagees. We are not willing to allow the Plaintiff Appellant to change his case in this way and the result is that the appeal must fail. 3. We may mention that the Appellant raised the question of the account of the decree, but that is a question which would only arise if a decree for sale could be passed. The Plaintiff Appellant had already obtained a degree for arrears of rent and the sum due on that decree was deducted from the whole amount of the mortgage money. If a decree for sale had been passed, it might rightly have included the whole amount, but as we can not pass such a decree, it is not contended now that the sum decree was less than it should have been. We dismiss the appeal with costs.