Fouzdar Singh and Others vs Baiju Mahton and Others

Ross, J.—The plaintiffs sued for the recovery of money advanced on an Ijara lease executed by defendants Nos. 2 to 15 and their predecessors on the 3rd of May 1901, in favour of the plaintiffs'' father by which 4 bighas 17 kathas of land was leased at an annual rental of 12 annas for a term of seven years from 1309 to 1315 with a proviso that in the event of non-payment of the zar-i-peshgi the settlement would stand until 1317. In 1319 the lessors sold their interest to defendant No. 1. In 1320, 1321, 1322, 1323, 1324 and 1325 the plaintiffs demand ed payment from the purchaser but the purchaser had no money and allowed the plaintiffs to hold over the kasht larfd from year to year, and, in lieu of the interest on the debt, told the plaintiffs to retain pos session of the lease-hold property. In 1326 the plaintiffs were dispossessed and, there fore, brought this suit claiming first a mortgage-decree; second, alternatively, a decree for money and, thirdly, in the alternative possession of the land.

The defence was that the suit was barred by limitation that the Ijara lease became null and void at the end of Jeth 1317 and that the zar-i-peshgi (money) had been paid.

The Munsif touna that the plea of payment was false, that the plaintiffs'' allegation of possession and dispossession was proved, and that the debtors asked the plaintiffs to hold over till re-payment, and that the suit was not barred by limitation because the enjoyment of the usufruct of the land was appropriation of interest on money due and time would only run from the date when the payment of interest ceased; that is, Jeth 1326. He also held that the lease was a lease only and not a mortgage and, therefore, passed a decree for money. The Subordinate Judge on appeal agreed with these findings. On the question of limitation he held that on the findings of fact Article 116 of the limitation Act had no application, that the terms of the lease were changed by subsequent oral agreement and that the parties must be held to be bound by the new contract. He also held that the plaintiffs were getting the usufruct of the land in lieu of interest and applied Section 20(2) of the limitation Act. He further held that, even on the construction of the lease itself, the plaintiffs had no right to sue until they were dispossessed.

The contention on behalf of the defendants, who are the appellants, is that this is a lease and not a mortgage and that, therefore, Section 20(2) of the limitation Act has no application ; that the usufruct of the land is not payment of interest within the meaning of Section 20; that if there was a new contract, it was a lease from year to year and required to be made by a registered instrument and on the true construction of the lease the cause of action arose in 1317 and the suit is barred by six years'' limitation.

I shall deal first with the construction of the lease. After reciting that the lease expires at the end of Jeth 1315, but if the zar-i-peshgi is not paid it is to continue until 1317, that is, for nine years, the instrument proceeds as follows:--"The term of this deed shall after nine years totally cease to continue and we shall enter upon seer possession and occupation of the kashi land; and if even till then we fail to pay the zar-i-peshgi or if the lessee be dispossessed from the leasehold property on any account whatsoever, the lessee shall be at liberty without waiting for the expiry of the term to institute a suit in the Civil Court and to recover the zar-i-peshgi with damages on account of loss of produce from the date of dispossession to the date of realization of the money with costs." Now, it seems to me that on the language of the deed the appellant is right in his contention that the lease absolutely determined in 1317 and if the suit was on the original contract it ought to have been brought within six years from that date. It is true that the language is not altogether accurate. Two contingencies are set forth: (1) if payment is not made by 1317; (2) if the lessee is dispossessed from the property. The result is stated in a comprehensive clause giving the lessee liberty, without waiting for the expiry of the term to institute a suit and to recover the zar-i-peshgi with damages on account of loss of produce from the date of dispossession to the date of realization. Part of this language is only applicable to the second contingency; but this inconsistency does not, in my opinion, modify the express stipulation that the lease determined in 1317.

But the Courts below have both found that there was a new contract each year, the plaintiffs demanded their money from defendant No. 1 and each year they were asked to remain in possession in lieu of interest. This possession continued till 1326. This is not a lease from year to year requiring registration, and the only question is whether the usufruct of the land received in. this way is equivalent to the payment of interest. The learned Vakil for the appellants contends that so to hold is to make Section 20(2) of the Act unnecessary and that the express provision, that in the case of a mortgagee in possession the receipt of the produce shall be deemed to be a payment for the purposes of Sub-section (1), leads by necessary implication to the inference that such receipts are not such payments in other cases. He relies on Krishnaji Sakharam v. Kashim Mohiddinsaheb 57 Ind. Cas. 76 : 44 B. 500 : 22 Bom. L.R. 385. In that case, however, all that was held was that as the mortgage was only good as a mortgage for the term of the mortgagor''s life, the possession of the mortgagee after his death was the possession of a trespasser and Section 20(2) had no application. In the present case the plaintiffs were not trespassers after the term of the lease expired. They continued in possession at the request of defendant No. 1, who was unable to pay his debt. The other cases on which the learned Vakil relies are Pichandi v. Kandasami 7 M. 539 : 2 Ind. Dec. (N.S.) 958; Venkari Babaji Naik v. Shidramapa Balapa Desai 19 B. 663 : 10 Ind. Dec. 444.

These were both cases of invalid mortgage. The first case simply decided that the plaintiff could not claim to have received profits of the mortgaged property nor to have received them as mortgages. In the second case it was argued that the Court ought to infer that the tenants paid the rent to the plaintiffs as interest on the bond. This argument was net overruled on the ground that the receipt of rent could not be treated as payment of interest, but on the ground that on the admissible evidence the inference could not be drawn. This case really against the appellants. On the other hand, Kariyappa v. Rachapa 24 B. 493 : 2 Bom. L.R. 378 : 12 Ind. Dec. 860; Ragho Shitaram v. Hari 24 B. 619 : 2 Bom. L.R. 452 : 12 Ind. Dec. 942; Mylan v. Annavi Madan 29 M. 234 : 16 M.L.J. 99 are clear authorities in support of the view contended for by the respondents. In my opinion, limitation is saved in this case by the receipts of the produce of the land which the plaintiffs continued to occupy in lieu of interest at the request of the defendant No. 1 owing to his inability to pay his debt. There can be no ground in reason why the produce of the land should not be accepted in lieu of interest if the parties has so arranged. In this case this was the arrangement, as has been found by both the Courts.

The appeal is dismissed with costs.