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1971 DIGILAW 160 (PAT)

Deolall Sah v. Sheonandan Singh

1971-11-25

G.N.PRASAD

body1971
Judgment G.N.Prasad, J. 1. This is a plaintiffs appeal against a judgment of reversal. The suit was instituted by the plaintiff for two reliefs in the alternative, namely, for recovery of the mortgage money on the ground of dispossession or for being restored to possession over the mortgaged property. 2. The mortgage bond (Ext. 1) was executed by Tilak Singh, the ancestor of the defendants on the 28th May, 1951, as security for a loan of Rs. 600.00 advanced by the plaintiff, the property given in mortgage being an area of 12 kathas comprised in plot No. 359 appertaining to Khata No. 6 in village Shankarpur Aima. On the same date, namely, the 28th May, 1951, Tilak Singh had executed a Kabuliat in the nature of a lease back for retaining possession over the mortgaged property and agreeing to pay to the mortgagee a sum of Rs. 54/- per year by way of rent. 3. It is not in dispute before me that the rent as per the Kabuliat (Ext, 2) was paid to the mortgagee up to 1957 and the finding of the court below is that there was default in the payment of the rent upto 1958 whereupon the plaintiff gave a notice to the defendants to put him in possession and since that was not complied with the present suit was instituted in 1960 initially as a suit for recovery of the mortgage dues; but subsequently an alternative prayer was added for recovery of possession over the mortgage security. 4. The principal question which has been canvassed in this Court relates to the nature of the transaction into which the parties had entered on the 28th May, 1951. As already stated two documents were executed by the mortgagor on that date, namely, the mortgage bond (Ext, 1) and the Kabuliat or the lease back (Ext. 2). Under the Kabuliat, the mortgagees were entitled to recover from the mortgagor the rental dues in respect of the mortgaged property which had been allowed to remain in possession of the- mortgagor for the purpose of cultivation. But Ext. 2 is no longer relevant inasmuch as when the trial court declined to pass any decree in favour of the plaintiff for recovery of the mortgage money and passed only a decree for recovery or possession, there was no appeal on his behalf. But Ext. 2 is no longer relevant inasmuch as when the trial court declined to pass any decree in favour of the plaintiff for recovery of the mortgage money and passed only a decree for recovery or possession, there was no appeal on his behalf. The appeal had been preferred in the lower appellate court by defendants and that was against the decree of the trial court for recovery of possession passed in favour of the plaintiff. The lower appellate court has taken the view that the plaintiff is not entitled to be put in possession because, in its view, the mortgage evidenced by the bond (Ext. 1) was not an usufructuary mortgage but a simple mortgage. 5. The essential characteristics of a simple mortgage as defined in Clause (b) of Sec. 58 of the- Transfer of Property Act are: the mortgagor binding himself personally to pay the mortgage money without delivering possession of the mortgaged property to the mortgagee and agreeing expressly or impliedly in the event of his failure- to repay the loan according to the contract entered into between the parties to the mortgaged property being brought to sale and the proceeds of the sale being applied so far as may be necessary towards the satisfaction of the mortgage dues. In other words, the mortgagor enters into a personal covenant to repay the mortgage dues whereas the mortgagee is not entitled to claim possession over the mortgaged property but only to get the same brought to sale for satisfaction of his mortgage money. 6. As against this the intents of an usufructuary mortgage as defined in Clause (d) of Sec. 58 of the Act are, firstly that the mortgagor either delivers possession or expressly or impliedly binds himself to deliver possession of the mortgaged property to the mortgagee and in lieu of entering into personal covenant to repay the mortgage dues the mortgagor authorises the mortgagee to retain possession of the mortgaged property until repayment of the mortgage money and to appropriate to himself, the rent and profits accrued in from the property in lieu of interest or depending upon the contract between the parties towards satisfaction of the mortgage money or partly in lieu of interest and partly in payment of the mortgage money. 7. The lower appellate court has proceeded upon the footing that Exts. 7. The lower appellate court has proceeded upon the footing that Exts. 1 and 2 really represent one and the same transaction, namely, a transaction of simple mortgage. But now it is clear from the decision of their Lordships of the Supreme Court in Mathuralal V/s. Keshar Bai, ( AIR 1971 SC 310 ) that the mortgage and the lease back, even though executed on the same day, can be regarded as separate transactions for the purpose of determining the remedies available to the mortgagee thereunder. In other words, the mortgagee can seek his remedy under either of the two documents. In this view, the previous decisions of this Court in Umeshwar Prasad y. Dwarika Prasad, (AIR 1944 Pat 5) and in Ramnarain Pasi V/s. Sukhi Tiwary, ( AIR 1957 Pat 24 ) appear to have been disapproved by their Lordships and the view of the Rajasthan High Court in Jankidas V/s. Laxminarain, (AIR 1957 Raj 32), holding that whether the two documents represent one transaction or two different transactions the Court must give effect to the terms of both of them instead of being unduly critical about them, has been approved. 8. In the instant case, we are now concerned with this suit instituted by the plaintiff on the basis of his right under the mortgage bond (Ext. 1) since the plaintiff no longer claims any remedy for recovery of rent or of the principal mortgage money on the basis of the Kabuliat (Ext. 2). 9. In order to examine the true nature of the transaction contained in Ext. 1, it is necessary to refer to its relevant terms. It has been described as Zerpeshgi maiyadi do-sala that is to say, a zerpeshgi for a term of two years commencing from the month of Jeth 1358 Fasli and terminating in the month of Jeth 1359 Fasli (it is difficult to understand how this period was reckoned as two years). In the body of the document, it was stated that on receipt of the zerpeshgi amount the executant had put the zerpeshgidar into possession and if the executant paid back the zerpeshgi money by Jeth 1359 Fasli then he would be entitled to get possession over the property from the zerpeshgi. In the body of the document, it was stated that on receipt of the zerpeshgi amount the executant had put the zerpeshgidar into possession and if the executant paid back the zerpeshgi money by Jeth 1359 Fasli then he would be entitled to get possession over the property from the zerpeshgi. If, however, despite the expiry of the aforesaid term ending in Jeui 1359 Fasli the executant was unable to pay back the zerpeshgi dues then he would be entitled to pay back the same at the end of the month of Jeth of any subsequent year and so, long as the zerpeshgi money was not paid by him the mortgagee would continue to remain in possession over the mortgaged property. If the matter stood merely upon these recitals then there can be no dfficulty in holding that it was a transaction of usufructuary mortgage of the nature dealt with by a Bench of the Calcutta High Court in Luchmeshar Singh V/s. Dookh Mochan Jha, ((1897) ILR 24 Cal 677) and a Bench of this Court in Kamal Nayan Prasad V/s. Ram Nayan Prasad, (AIR 1930 Pat 152). But there is a further stipulation in the document (Ext. 1) which is to the effect that in the event of the mortgagee being dispossessed from the mortgaged property or any part thereof, his remedy would be that of recovery of the entire zerpeshgi money together with compensation at the rate of Rs. 24/- per cent, per annum from the date of dispossession and the entire money would be recoverable in the first instance from the mortgaged property itself and thereafter from other properties belonging to the mortgagor. The question is whether or not by reason of this term contained in the mortgage bond (Ext. 1), the remedy the plaintiff-appellant for being put back in possession of the mortgaged property is barred. 10. It will be noticed that the entire basis of the suit instituted by the plaintiff is his dispossession arising from the omission or failure of the mortgagor to pay, the rent stipulated in Ext. 2. 1), the remedy the plaintiff-appellant for being put back in possession of the mortgaged property is barred. 10. It will be noticed that the entire basis of the suit instituted by the plaintiff is his dispossession arising from the omission or failure of the mortgagor to pay, the rent stipulated in Ext. 2. Whatever might have been the cause of dispossession, it is manifest that it is on the basis of dispossession alone that the plaintiff has sought the relief of recovery of possession.; But the contingency of dispossession, howsoever arising has been provided for in the mortgage bond (Ext, 1) itself and that is to give to the mortgagee the right of suing for the recovery of his entire mortgage dues. There is no stipulation for being restored to possession in the event of dispossession, far less in the contingency of the dispossession having taken place long after the expiry of the terms ending Jeth, 1359 Fasli fixed in the mortgage bond. 11. For the aforesaid reasons, though not for the reasons given by the lower appellate court, I have come to the conclusion that the plaintiff is not entitled to be restored to possession and since that is the only relief which the plaintiff now seeks, it must follow that the suit has been rightly dismissed. 12. The appeal, therefore, fails and is accordingly dismissed but in the circumstances, there will be no order as to costs.