Harnath Singh and Another vs Maiya Ambika Devi and Another

Manohar Lall, J.—This is an appeal by defendant 5 against a decision of the learned subordinate Judge, dated 29th September 1937, by which he decreed the suit instituted by the plaintiffs in part.

The suit was instituted for recovery of possession of property covered by Ex. 3 styled as a rehan deed by the mortgagor (defendant l) in favour of the plaintiffs and another on 6th June 1933. The document was executed on taking an advance of Rs. 13,000. It was stipulated that defendant 1 was to remain in possession for a certain period and to pay certain amount of interest on the sum advanced. It was also stipulated in the document that if the entire amount was not paid in Jeth 1341 F. this document will be operative till 1350 P. at the expiry of which period, namely 1350 F, defendant 1 will be entitled to repay the entire amount to the plaintiffs who will then have to deliver up possession to the executant.

In case the amount was not paid, the plaintiffs would remain in possession until satisfaction of the sum advanced. On 10th April 1985, the interest of defendant 1 was sold in execution of some decree and purchased by the appellant. The plaintiffs have never obtained possession of the lands since the execution of the deed of 6th June 1933.

In these circumstances, the present suit was instituted on 6th June 1936, for recovery of possession of the properties described in the bond of 1933. Plaintiffs claimed to be the usufructuary mortgagees who were entitled to possession under the terms of this document. They also claimed mesne profits for 1342 and 1343 Fasli, that is to say, for the period anterior to the institution of the suit and also mesne profits pendente lite and in future up to the date of recovery of possession.

The learned subordinate Judge has held that the plaintiffs are entitled to a decree for possession; but no mortgage decree can be passed in this suit, hence the appeal by defendant 5. It was contended by the learned advocate for the appellants that there is no hypothecation clause in the deed (Ex. 3) and, therefore, the plaintiffs are not usufructuary mortgagees with the result that the decree for possession passed in favour of the plaintiffs should be set aside. Now, the definition of usufructuary mortgage is given in Section 58, T.P. Act, which was amended in 1929. The definition, as it stands, is wide enough to cover the transaction in the present case. By Sub-clause (d) it is provided that:

Where the mortgagor delivers possession or ex-pressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgage money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee.

This is exactly what the present document provides. It states that the mortgagor binds himself to deliver possession of the property in Jeth 1341 F. and authorizes the plaintiffs to retain possession until Jeth 1350 F. when the executant binds himself to pay the money. It further provides that the plaintiff will be entitled to retain possession until payment of the money advanced. It was argued that there is no hypothecation clause in the document such as is commonly found in similar deeds. But the word rehan which is expressly mentioned in the heading of the document and in the body of the document in more places than one indicates that the parties intended that the properties described in the document should be taken as security for the loan advanced. The amount of Rs. 13,000 is spoken of as the rehan money at p. 5, line 7.

I am, therefore, of opinion that, upon a proper consideration of this document, it must be held that the plaintiffs were usufructuary mortgagees and, in the circumstances, as has been found by the learned subordinate Judge, they were not put in possession against the stipulation contained in the document. It follows that u/s 68, T.P. Act, plaintiffs are entitled to either a decree for the amount which they lent or for possession.

In the present case the learned subordinate Judge has granted them a decree for possession to which the plaintiffs were entitled. I do not see any error in the judgment delivered by the learned subordinate Judge.

The appeal fails and must be dismissed with costs. It was argued on behalf of defendant 7, who is not an appellant before us, that he is aggrieved by certain findings which have been arrived at in the case; but notwithstanding the findings the decision is in his favour. I do not see therefore how he is aggrieved when the decree is in his favour.

Harries C. J.

I agree