Barhamdeo Narain Singh vs Ramanand Prasad Singh and Another and Saligram Singh

Chapman, J.—This was a suit for the recovery of money alleged to be due in respect of certain payments which were undertaken to be made by the executants of a registered deed dated the 29lh March 1107. Under that deed an advance of Rs. 12,000 had been made to a zemindar. The deed recites that in lieu of this bond certain zemindari rights were made over to the person who made the advance at what is called a fixed annual rental of Rs. 803-4-0 for a period of nine years. The property was said to be made over under a zarpeshgi thicca and the persons to whom the property was thus made over were to deduct Rs. 620 on account of interest of the zarpeshgi and to pay the balance of Rs. 83-4-0 annually, installment after installment, according to the kista detailed in the bond. There is a promise in the bond to repay the advance in the year 1323, and that upon this repayment the document is to be returned, if the repayment is not made the person who made the advance is to remain in possession of the property until the advance is repaid in full; and until the advance is repaid the properties are to be considered to have been hypothecated; they are not to be transferred or encumbered, and, if they are so transferred or encumbered by the owner, the transfer is to be considered null and void. If the persons who made the advance are dispossessed of the property they may then immediately sue for the recovery of the advance made by them from the other properties and persons to whom the advance was made. The learned Munsif held that the suit for these arrears of the annual payment of Rs. 83-4-0 was a suit for rent and, therefore, only three years'' dues could be recovered. In appeal the learned Subordinate Judge has held that these dues were not rent but that they were payments due under a registered agreement and, therefore, the Article of the Limitation Act which is applicable is Article 116, and the claim for the entire six years was not barred by limitation. It is contended before us that the learned Munsif was right and that the learned Subordinate Judge was wrong. If the suit was for rent, then undoubtedly the land being agricultural land the special period of limitation of three years provided for in the Bengal Tenancy Act would apply.

The question we have to determine is, whether the suit was for rent or not, and a decision upon that question, depends upon whether the person who is liable to make these payments was a tenant. Did he hold under the person to whom the payments had to be made? It seems clear to us that upon the terms of the bond the land was held as security for the advance which had been made. The holder of the land was entitled to remain in possession until he was redeem-ed, and if his possession was disturbed he was entitled to recover the advance which he had made. That being the nature of the deed, we are of opinion that the deed was an usufructuary mortgage, and that the person in possession held possession as a mortgagee and did not hold under the person to whom these annual payments were due. That being so, these amounts which were annually payable were due from him as mortgagee under an arrangement with the mortgagor and were not due from him as a tenant. The suit was not for rent and the learned Subordinate Judge was correct in holding that the suit was not barred by limitation.

In disposing of the appeal it is well to make clear that the plaintiff admittedly is entitled to a decree as against the appellant only for one-half of the rent due for the six years. It is admitted before us that the other half has already been received by him from the defendant No. 2.

The result is that this appeal is dismissed with costs.

Atkinson, J.

I agree.