Bibi Umatus Sogra and Others vs Mahendra Narain Sinha

Das, J.—This appeal is directed against the decision of the learned District Judge of Monghyr by which he has in substance rejected the claim of the plaintiffs to redeem the disputed property on payment of Rs. 13-2 Order The facts are these:

On the 11th October, 1901, the plaintiffs executed a zurpeshgi in favour of the defendant. It appears that there was an advance of Rs. 900 by the defendant to the plaintiffs. It was agreed that Rs. 120 a year was to be paid by the defendant to the plaintiffs as rent of the property: that Rs. 88-8 out of Rs. 120 a year was to be set off towards the interest due to him and that Rs. 31-8 should be paid by him to the plaintiffs every year.

The plaintiffs contend that the defendant has not paid the annual sum of Rs. 31-8-0 which he agreed to pay and they contend further that they are entitled to claim an equitable set off in respect of this annual sum of Rs. 31-8 which was never paid by the defendant to them. They say that if an account be taken on the footing of the transaction of the 11th October, 1901, Rs. 13-2-0 will be found due by them to the defendant. They, therefore, ask for a decree for redemption on payment by them to the defendant of Rs. 13-2 0.

In the Court of first instance the defendant did not adduce any evidence. He applied for an adjournment on the ground that his witnesses were not present. That application was rejected and the suit was heard ex parte, The learned Subordinate Judge gave a decree to the plaintiffs substantially as claimed by them.

On appeal the learned District Judge has reversed the decision of the learned Subordinate Judge. The view which found favour with him is that the plaintiffs are not entitled to set off against the zurpeshgi money the sum due to them as rent. In deciding the case in the way he did, the learned District Judge relied on the decision of a Single Judge of this Court Tokhan Pandey v. Sivakanta Prosad Singh 56 Ind. Cas. 743 which it appears followed a decision of a Single Judge in the Allahabad High Court reported in Fakir Muhammad Khan v. Ali Sher Khan 10 Ind. Cas. 113.

The learned Advocate appearing on behalf of the plaintiffs-appellants contends that the plaintiffs are entitled to an equitable set off and that the decision of the learned Subordinate Judge is erroneous.

So far as the Calcutta High Court is concerned there is no doubt that that Court has consistently taken the view that the mortgagor is entitled to set off the rent payable to him as against the zurpeshgi money. I may refer to the case of Nursingh Narain Singh, v. Baboo Lukputty Singh 5 C. 333 : 2 Ind. Dec. 823. Ainslie, J. in delivering the judgment of the Court said as follows:

The defendant as lessee was bound to tender to the plaintiff his rent as it fell due. Instead of doing so, he chose to keep that rent in his own pocket. The plaintiff might have insisted on the conditions of the lease being strictly carried out, but as the defendant had departed from them, he was justified in treating the rent withheld not tendered as a set off against his own debt to the defendant. The defendant has by his conduct altered the arrangement under which he held the property; and as a consequence, the plaintiff is entitled now to come in and claim an account from him.

This case has been consistently followed in the Calcutta High Court.

Now as I have said the decision of this Court in Tokhan Pandey v. Sivakanta Presad Singh 56 Ind. Cas. 743 was the decision of a Single Judge. The case was heard ex parte in the absence of the respondents and it has, got all the infirmities of an ex parte decision. It is not necessary, however, to overrule that decision for in that case the rent was payable to the landlord and not to the mortgagor. It so happened that after the "zurpeshgi, the interest of the mortgagor and the interest of the landlord became vested in the same person, but that probably would not make any difference to the point which was argued before this Court, namely, that a question of rent payable to the landlord stood on a different footing from the rent payable to the mortgagor. The facts of this case are, however, entirely different, and, in my opinion, if I were satisfied that the rent has been withheld by the defendant throughout the period of the zurpeshgi, I would give effect to the contention of the plaintiffs. The defendant, however, urges that he should have an opportunity of establishing before the Court that there was no default on his part and that he has paid the annual sum of Rs. 31-8 0 to the plaintiffs throughout the period he has been in possession of the disputed land.

In the circumstances of the case, I think that he should have an opportunity of adducing his evidence and it will also be open to him to show that the transaction does not amount to a mortgage but that it amounts to a lease.

I would allow the appeal, set aside the judgment and decree passed by the Court below, and remand the case to that Court with a direction that it should remand the case to the Court of first instance. That Court will give an opportunity to the defendant to adduce his evidence and it will then proceed to decide the case in accordance with law.

The costs are reserved and will be disposed of by the Court of first instance.

Scroope, J.

I agree.