Hira Raut vs Fakirchand Mahton and Others

Ross, J.—On the 14th of November 1896, 17 Kathas and 8 dhurs of land were mortgaged by defendant third party to defendants second party in the name of defendants first party in consideration of an advance of Rs. 61/-on the 26th May 1916. The defendants third party sold the premises to the plaintiff who brought this suit for redemption. The defence was that besides the principal sum advanced the plaintiff was liable to pay rent from 1304 to 1325 with interest thereon which had been paid by defendants second party while in possession of the mortgaged property. The only question in this appeal is as to the liability of the plaintiff to pay the rent when redeeming the property. Both the Courts below have held that he is liable and he appeals against the decision. The question is one of the construction and effect of that portion of the Sudbharna deed which relates to the payment of rent. The passage has been translated as follows. "The payment of Zemindari rent shall rest with the Bharnadar. I the executant neither have nor shall have any concern therewith. The Bharnadar shall himself obtain receipt on my behalf. At the time of payment of the said principal amount, I shall pay the rent with interest at Rs. 2 per cant per mensem" Mr. S.N. Bose in an interesting argument contended that the land was hypothecated for the principal sum only. The words in the deed are "As security for the said amount of debt, I hypothecate the mortgaged property". It is argued that the stipulation as to the repayment of the rent is a separate contract independent of the mortgage security, that it contains only a personal covenant by the mortgagor which will not run with the land so as to affect it in the hands of a purchaser from the mortgagor, and that if it is an integral part of the agreement, it is a clog on the equity of redemption and therefore the Court will not give effect to it.

Now even apart from the express contract it would have been incumbent on the mortgagee in possession to pay arrears of rent in default of payment of which the property might have been sold. When he makes such payment he has a statutory right, in the absence of any contract to the contrary, to add it to the principal. The question therefore is whether the contract expressed in the deed is a contract which takes away this statutory right. It does not do so in express words. Does it do so by necessary implication? On reading the deed I cannot so hold. On the contrary it seems clear from the undertaking to repay the rent with interest at the time of paying the principal, that the statutory right was acknowledged and given effect to. It is true that the property was hypothecated for the principal sum but the statute increases that principal sum by the amount of rent paid to save the property, unless it is contracted out of and I can find nothing in the words here to take the case out of, the statute. The words may not add anything to the rights of the mortgagee but they certainly take nothing away from them. The appeal therefore fails and must be dismisssd with costs.