Jamuna Singh and Others vs Sheonandan Singh and Another

Harries, J.—This is a Letters Patent appeal from a decision of Wort J., allowing a second appeal and decreeing the plaintiff''s suit. The suit out of which these proceedings arise was brought by the plaintiff to recover a sum of money said to be due on a mortgage bond.

The claim was based upon a covenant to pay which was said to be in the bond. The learned Munsif who tried the case at first instance substantially decreed the claim, but on appeal the learned Subordinate Judge reversed the decision of the trial Court and dismissed the claim. In the view of the learned Subordinate Judge there was no covenant to pay in the mortgage bond in question.

In second appeal, Wort J. was of opinion that there was a covenant by the mortgagor to pay within the meaning of Clause (a) of Section 68(1), T.P. Act, and he accordingly reversed the decision of the lower Court and restored the decree of the learned Munsif. The only question to be decided in this appeal is whether the mortgage contains a covenant by the mortgagor to repay the sum advanced. The material portions of the mortgage are as follows:

We have, on taking Rs. 425 by way of rehan money paying no interest, let out in rehan, and pledged the whole and entire one bigha of kaimi raiyati nahdi kasht land lying in mauza Aunta, which is owned and possessed by us, together with all the rights and interest appertaining thereto for a term of five years from Asin 1334 to Bhado 1338 Fasli to Mt. Chahautra Kuari.... Now, we have on receipt of the said whole and entire rehan money put the said rehandar in possession and occupation of the property let out in rehan hereunder. It is desired that the rehandar should enter into possession and occupation of the property let out in rehan hereunder, cultivate or get it cultivated and appropriate the entire produce of the property covered hereby as profit of her rehan money and remuneration for labour and her right as rehandar.

Then follows the most important term:

When the term of this deed will expire in the month of Bhado 1338 Fasli, then at that time the executant on paying the entire mortgage money will get back the deed and the rehan will be redeemed. In ease of non-payment, this deed with all the above conditions will precisely remain intact and hold good till the payment of the said rehan money, that is, for nine years from 1334 to 1342. When we shall pay the said rehan money we shall pay it towards the end of Bhado of any year.

The learned Single Judge was of opinion that the term as to redeeming the mortgage contained a personal covenant by the mortgagor to repay as contemplated in Section 68(1)(a), T.P. Act, which provides that a mortgagee has a right to sue for the mortgage money where the mortgagor binds himself to repay the same.

In my view there is no covenant by the mortgagor in this mortgage to repay the money. All that is provided is that at the expiry of the term in the month of Bhado 1338 the mortgagor, if he pays the money, will be entitled to the return of the deed; in other words, he may, if he chooses, redeem the mortgage at the end of Bhado 1338. He, however, need not do so, and if he does not repay the money the term of the mortgage is extended. Nowhere does he personally bind himself to pay the money at the end of Bhado 1348 or at any other time. The decision of this case must depend upon the construction which this Court places upon the particular words of this deed; but there are a number of decisions which afford some assistance.

A Bench decision of this Court, Babu Kamal Nayan Prasad Sinha and Others Vs. Babu Ram Nayan Prasad Sinha, Raghunandan Prasad and Binda Pathak and Others, , was referred to by Wort J. in the Court below and distinguished. In my judgment, however, the covenant in that case was very similar to the covenant in the present case, and the learned Judges declined to hold that there was in that particular mortgage a covenant to pay the mortgage money. At page 75 Das J. observed:

An absolute covenant cannot be coupled with a condition that if the money be not paid within the time fixed the mortgagee would continue to be in possession and the mortgage bond will remain in force.

A case in which the term was very similar to the term in the present case is Luchmeshar Singh v. Dookh Mochan Jha (97) 24 Cal. 677. In that case the term was

and haying paid the principal money in the month of Chait 1297 we shall take back the document and the land. In case we fail to repay the principal money at due date the sudbharna bond shall remain in force.

It was held that there was no personal covenant to repay the mortgage money in that mortgage. A recent case of this Court relied upon by Wort J., is the case in Raj Kumar Bharthi and Another Vs. Surajdeo Sahi, . It is to be observed, however, that in that case there was no provision as to what was to happen if payment was not made on due date. At p. 749 Manohar Lall J. referring to Babu Kamal Nayan Prasad Sinha and Others Vs. Babu Ram Nayan Prasad Sinha, Raghunandan Prasad and Binda Pathak and Others, and the provision in the bond in that case, that if the zarpeshgi was not paid in due time by the executant in one lump sum then the patta would remain in force and intact until the repayment of the zarpeshgi money, stated that the presence of such a term meant

that the parties contemplated that on the expiry of the due date if the money had not been paid by the mortgagor the result would be exactly as if a new zarpeshgi had been executed on the same terms as before.

It appears to have been Manohar Lall J.''s view that if there had been a term dealing with what was to happen if the mortgage money was not paid on due date, he would have held that there was no covenant to repay. Mr. Lai Narain Sinha who has appeared for the respondent has referred us to the case in Jag Sahu and Others Vs. Musammat Ram Sakhi Kuer and Others, , but that case cannot assist us because the precise terms of the covenant in question are not set out. He also relied upon the case in Pargan Pandey v. Mahatam Mahto (07) 6 C.L.J. 143 in which a Bench held that there was a promise to repay. It is to be observed, how-'' ever, that in that case there was a most explicit promise, the words actually used being:

I shall repay the principal amount on the full moon day of the end of Jaith 1287 Fasli and take back the bond.

As I have stated earlier, each case must depend upon the particular terms of the bond. In the present case there is merely a provision that the bond may be redeemed at the end of Bhado 1338; but if it is not, the term of the bond is extended. There is no promise by the mortgagor to repay the amount, and that being so, a suit to recover the amount of money advanced cannot succeed. In my judgment the decision of the learned Single Judge cannot be sustained and must be set aside.

In the result, therefore, this appeal is allowed, the decision of the learned Single Judge is set aside and the plaintiff''s suit dismissed with costs here-and in the Courts below.

Fazl Ali J.

I agree.