Mathura Singh and Others vs Palakdhari Rai and Others

Meredith, J.—This appeal arises out of a suit by the plaintiff, appellant to recover money advanced to defendant 1 as a loan. The advances amounted to Rs. 1200 and defendant 1 executed two sudhbharna deeds for Rs. 400 and Rs. 800 respectively on 14th February 1924. It was the plaintiff s case that he was put into possession of the mortgaged properties, but was dispossessed on 26th July 1924 by the defendants first party and defendants second party. The defence of the principal defendants was that actual possession of the land was with defendant 1 who made over to the plaintiff the produce thereof to the extent of 48 maunds of paddy annually to the plaintiff. It does not seem necessary to decide whether up to 1341 the plaintiff was in physical possession or in constructive possession by receipt of profits from defendant 1 who held under him.

The plaintiff''s case was that in 1342 defendant 1 and others dispossessed him and this has been negatived by the Courts who hold that the plaintiff is still in constructive possession. That being so, the question arises whether the plaintiff can sue for his money, which was the form in which the claim was laid at first or alternatively for sale of the mortgaged property which was an additional prayer in the alternative added at the appellate stage. The point turns on whether there is a personal covenant to repay. We have been shown some authorities by both sides, but as pointed out by Wort Ag. C.J. in Raj Kumar Bharthi v. Surajdeo Sahi AIR (1938) Pat 585

It is not very profitable to attempt to construe a document by reference to authorities; the words of each document must be taken, and the Court must ascertain, as best it can, what the intention of the parties was in accordance with the terms expressed by them.

In these two documents which are similar in their provisions there is an express promise that:

I (the executant) on paying up the said amount of principal in full in one lump sum in the month of Jeth 1334 Fasli and getting the endorsement of payment made on the back of this sudhbharna rehan deed by the said creditor shall take back this land.

That appears to be a plain promise to repay. Then the hypothecation clause is curious. The executant mortgages and hypothecates the lands in question not for payment of the principal but to secure payment of the interest on it. So far as appears from the documents themselves, the payment of principal is not secured on the land. That being so, I see no objection to giving the plaintiff a money decree for the amount of principal which he claims subject to limitation. As regards interest, the bond stipulates that no interest shall be payable so long as the plaintiff is in possession of the land. Therefore, there is no cause of action for interest up to the date of suit and if the plaintiff has any grievance with regard to non-delivery of produce of the land which he has sub-let to the defendants, then that would be a separate cause of action.

Finally we have to consider the question of limitation which is raised on behalf of the respondent. The due date of payment of the one bond was about June 1926 and of the other June 1927. The suit was instituted in May 1937. The bond was a registered one. It is contended that the period of six years'' limitation bars the suit; but the appellant relies on Sub-Section 2 of Section 20, Limitation Act, under which;

Where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of Sub-section (1).

Mr. Bose for the respondent refers to the proviso to sub-Section 1 of Section 20 which was inserted by the amendment of 1929. His contention is that this proviso applies to the whole of the Section, whereas for the appellant the contention is that it applies only to Sub-section 1.

It does not seem to us that the intention of the Legislature in enacting this proviso was to abrogate the long established and traditional practice by which a mortgagee in possession of land is deemed to be in receipt of interest and to have a fresh start of limitation from the period when his possession ceases and in that view I am of opinion that the proviso was intended to apply to Sub-section 1 and not to sub-Section 2 of Section 20, so that the suit is not barred by limitation.

In my opinion the plaintiff appellant was entitled to a decree for the principal amount claimed and should get interest from the date of suit up to the date of decree at six per cent, simple and thereafter interest on the whole amount at six per cent. The decree will be against defendants 1 to 6 only with costs proportionate to his success. Defendants 2 to 6 being the sons and grandsons of defendant 1 are liable to the extent of their interest in the family property.

Chatterji, J.

I agree.