(Babu) Brij Ratan Das and another vs Raghunandan Gir and others

Dawson-Miller, C.J.—This is an appeal by the plaintiffs from a decision of the Subordinate Judge of Gaya, dated the 7th February 1920.

The appellant Brij Ratan Das and his son Raj Kumar Lal, who is joint with him in estate, instituted the suit as plaintiffs on the 4th March 1919 to enforce a mortgage bond executed in favour of Brij Batan by the first defendant Goshain Baghunandan Gir on the 22nd October 1910 to secure payment of a sum of Bs. 4,850-14-6, the amount found due on an adjustment of accounts between the parties, together with interest. The property hypothecated under the bond is described by the mortgagor in the instrument itself as "the entire 16 annas of brit and the temple of Sri Pita Maheshwarji with the orchards and houses appertaining to it and all sorts of income and profits accruing therefrom situate in mahalla Utarmanus appertaining to mahalla Ramna, ward No. 5, one of the quarters of Sahebganj, pargana and District Gaya, constituting my proprietary interest and held by me in occupancy right and which has been acquired by me personally, the boundaries whereof are given below-minihai mafi land appertaining to the temple and the said temple."

The defendants other than the mortgagor are his brother Wazir Gir and other members of his family most of whom are minors. Baghunandan Gir, the mortgagor, filed a written statement but took no part in the trial and was not represented in this appeal. His brother, the second defendant, as also the minors, filed written statements and contested the suit. It was pleaded that the plaintiffs had no cause of action, that the court-fee was insufficient, that the suit was barred by limitation, that it was bad for mis-joinder of parties, that the bond was executed by the first defendant under fraud and undue influence of the plaintiffs, that there was no consideration for the bond and that it was not genuine and valid, that the loan covered by the bond was not contracted for legal necessity and that the minors were not benefited thereby and were not liable for the same, that the rate of interest was usurious and unconscionable and by way of penalty, that the properties mortgaged were inalienable and the mortgagor had no right to mortgage them. A plea of payment was also set up by the first and second defendants and the suit was challenged as being invalid on the ground of champerty and as against public policy. Most of those pleas, as to which issues were framed, were abandoned at the trial and the only questions left for determination by the learned Subordinate Judge were those which related to limitation, the genuineness and validity of the bond and the consideration therefor, the question of legal necessity, the question relating to interest and whether the properties were inalienable so as to preclude the mortgagor''s right to mortgage them.

All these issues except the last were determined in favour of the plaintiffs. The last mentioned issue, however, was one which in the opinion of the learned Subordinate Judge went to the root of the whole claim and was determined in favour of the defendants. The learned Judge found that the properties mortgaged were inalienable, that the defendant Raghunandan Gir had no right to mortgage them and that the mortgage was absolutely void.

From this decision the plaintiffs have appealed and contend in the first place that it was not competent to the mortgagor to dispute the title which he himself had granted or to set up against the mortgagee the paramount title of a third party even though the latter might eventually prove a right to recover the property. They contend in the second place that the Judge was not justified upon the evidence in arriving at the conclusion that the property was inalienable.

[Here the judgment discusses the evidence regarding the inalienability of the mortgaged property and continues as follows.]

Having regard to the documentary evidence in the case from which it appears that since the year 1852 the property in suit has been disposed of or dealt with by those from time to time in possession as if they had a proprietary and transferable interest therein, there is much to be said for the appellants'' contention that it is not made out that the property is inalienable or that the mortgagor had no right to mortgage the same. It is not, however, in my opinion, necessary to determine this question for I consider that the appellants must succeed upon the first point. The respondents by the plea taken are in fact endeavouring to set up the jus tertii and to plead as between the mortgagor and his mortgagee the paramount title of another. The Court is not concerned for the purpose of determining the issues in a mortgage suit whether some third party has a title adverse to that of the mortgagor. It was contended on behalf of the respondents that Raghunandan Gir, the first defendant, was really in the position of a trustee in regard to the property in suit and therefore had no powers of alienation contrary to the terms of the trust and that no question of estoppel could arise in such a case. Had the mortgagor purported to transfer the property in the capacity of trustee, this question would have arisen for determination. There is authority both in this country and in England for the proposition that even where the mortgagors are trustees acting in a public capacity and not for their own benefit, they are estopped from denying their title and cannot set up as a defence against the mortgagee that the property so mortgaged is trust property which the mortgagors had no right to mortgage. [Doe d. Levy v. Borne (1842) 3 Q.B. 757 and Mahamaya Debi Vs. Haridas Haldar, and Fisher''s Law of Mortgage, S. 872. It is unnecessary, however, in the present instance to decide this wider issue as the mortgage deed clearly and unmistakably purports to be executed by the mortgagor as the proprietor of the property in his own interest and he is estopped from denying the interest which he represented as his own proprietary right in the deed. With great respect to the learned Subordinate Judge I think that he ought not to have embarked upon a consideration of the question of the defendants'' interest in the present suit. If it should hereafter turn out either that the Hindu public or anybody else is interested as proprietor of the mortgaged property or has a paramount title adverse to that of the mortgagor the decision in this suit will not be binding upon such a person, and if in fact there is a paramount title in anybody else, it is competent to such person to take proper steps at the proper time to protect his interests. In my opinion this appeal should be allowed with costs against the Respondents who have appeared and contested the appeal. The judgment and decree of the learned Subordinate Judge should be set aside and in lieu thereof there will be the usual mortgage decree for the amount claimed with interest at the bond rate up to the expiry of the days of grace which in this case will be three months from the date of this decree, and costs, and further interest thereafter on the decretal amount so found due and costs at 6 per cent, per annum until realisation.

Foster, J.

I agree. As to the mortgagor''s plea that the mortgaged property is held in trust for the Hindu public and the idol, in my opinion, there can be no doubt that it lies outside the scope of the mortgage suit, so far as it asserts a third person''s title. A mortgage decree for sale does not purport to assure a good title to the prospective auction-purchaser.

As to the plea that the property is inalienable on the ground that the sale of a public endowment and its emoluments is against public policy, my opinion is that the mortgagor is in this case estopped by his own deed. A material question of law would, I concede, have arisen, had the Defendant expressly mortgaged the emoluments of a public endowment: for there are decisions which declare such properties inalienable. There are English decisions which have removed the bar of estoppel where the mortgagor in his deed has contravened legislative enactments limiting his authority and where he has in the mortgage suit raised the question of alienability. So a plea of public policy, based on Indian decisions, might possibly be brought into analogy with those English decisions. But in my opinion, we have no such case before us. A close study of the whole mortgage deed, the subject-matter of the suit, will, I think, show that the private ownership of the mortgagor was emphasized by frequent reiteration. Much has been made of the meaning of certain terms in the deed implying (in the circumstances of this case) that the income is derived from daily offerings made by devotees to the idol, but in my opinion this is not inconsistent with private ownership. So having regard to the general tenor of the mortgage deed, which indicates a mortgage of private property, I do not think that any question of public policy can be raised in the present suit, and the defendant is estopped by his own act and deed. If in fact it is a public endowment, the Hindu public and the idol have identical interests, and they have numerous remedies, both under special enactments and the general provisions of law.