Narain Singh and Others vs Shimbhoo Singh and others

Barnes Peacock, J. 1. In this case the plaintiffs, as sons and heirs of Pohoop Singh, a mortgagee, seek to recover possession of 20 biswas of the zemindari right of mauza Lallpoor. The defendants in the suit are the representatives of the mortgagor. The plaintiffs state that they claim to establish their right as mortgagees in virtue of their title as heirs of their defunct father, Pohoop Singh, "in that, under a mortgage-deed, dated Phagoon Badi 7th Sumbat 1896, Pohoop Singh, the ancestor of the plaintiff''s, having obtained a decree from the Sudder Ameen''s Court, was put in possession on the 31st August, 1846." Most of the defendants admit the claim, but the defendants Man Singh, Shimbhoo, Girdharee, and Motee, put in an answer, by the second paragraph of which they admitted that under the former decree the plaintiffs'' ancestor was in possession for upwards of a year; but they set up in the fourth paragraph of the same written statement, that "the mortgage alleged by the plaintiffs is wholly unfounded. The defendants'' ancestor did not receive the mortgage-money from the ancestor of the plaintiffs; and Pohoop Singh, the ancestor of the plaintiffs, was a person notorious for his expertness in court affairs. He had with a view to deprive Asaram and Sheo Lall of their mortgage-money, obtained by deception a decree on the mortgage-deed in suit, and the defendants'' father had, according to the Shasters, no right to transfer and waste the defendants'' ancestral property without any legal necessity to satisfy illegal demands. Hence, under the Shasters also, the mortgage alleged by the plaintiffs is invalid, and the claim is unjust." 2. Now, having admitted that the plaintiffs did obtain possession by virtue of a decree, and that he remained in possession for a year, the defendants also, in the same written statement, alleged that the mortgage was collusive and a benami transaction. But although the written statement must be taken altogether, it does not necessarily follow that the whole of the defendants'' statement is to be taken as proved in their favour, if they offer no evidence whatever in respect of the allegation that the mortgage was a fraudulent transaction. 3. It appears, then, that the plaintiffs'' ancestor did get into possession on the 31st August 1846. In 1847 he was dispossessed in a suit which was brought against him by the first mortgagees, Asaram and Sheo Lall. He was then turned out of possession, and remained out of possession from 1847 down to the year 1870. The precise terms of the mortgage-deed do not appear, but, as far as can be collected, it was a mortgage-bond, by which it was stipulated that in the event of the non-payment of the mortgage-debt within five years, the mortgagors would cause a mutation of names and the plaintiffs be pui into possession. 4. It appears that the plaintiffs'' ancestor did get possession under that document, and it appears to their Lordships that the decree obtained upon that document gave the plaintiffs, as mortgagees, a title to the land as against the defendants, but it gave them no title as against the prior mortgagees, Asaram and Sheo Lall. When Asaram and Sheo Lall turned the plaintiffs'' ancestor out of possession, it did not destroy his title and right to the land. It may have given him a right of action as against the mortgagors for having mortgaged to him when they had previously mortgaged to Asaram and Sheo Lall, but it did not destroy the right which the plaintiffs obtained against the defendants by virtue of the mortgage and of the judgment which they had obtained upon it. 5. The first Court laid down certain issues: first, whether the original mortgagors executed the mortgage-deed in respect of the property in suit on receiving the full mortgage-consideration, or whether it was collusively secured without payment of any mortgage-consideration, and whether the mortgage-deed could take effect against the defendants according to the Hindu Law. The Judge says in his judgment--"It is apparent that plaintiffs'' predecessor on the former occasion obtained a decree for possession on proving the mortgage-deed, and the payment of mortgage-consideration; and the fact of the decree having been made is admitted by defendants. Again, all the defendants, excepting four, two of whom have made no defence, confess the claim, which is further supported by the evidence of Maulvi Inayat Ali, pleader, Chuni Lall, patwari, and two other persons, both named Hulasi, witnesses for plaintiffs. The plea urged by defendants must therefore be over-ruled; and they have failed to refute the claim." He therefore gave a decree in favour of the plaintiffs. 6. Upon that an appeal was preferred by Shimbhoo alone to the High Court; and one of his grounds of appeal is that there was "no cause of action and foundation for the plaintiffs'' suit; neither the deed of mortgage nor the decree has been produced; the conditions agreed upon between the parties cannot be ascertained." The High Court, having heard the case argued, gave judgment and reversed the decision of the first Court. They say that "the High Court''s order of the 1st April 1872 could not give any legitimate cause of action.* Nor did any right of action accrue to the plaintiffs by reason of the satisfaction of the debt of Asaram and Sheo Lall and the recovery of possession of the estate by the mortgagors or their heirs." It appears to their Lordships that there was a mistake on the part of the High Court in holding that no cause of action accrued to the plaintiffs by reason of the satisfaction of the debt of Asaram and Sheo Lall, and the recovery of possession of the estate by the mortgagors or their heirs. It appears to their Lordships that when the first mortgage was paid off in 1870, the title of the plaintiffs, which had all along been a good title as against the mortgagors, was a valid title as against every one. Then, when their title became a valid and a good title, the mortgagors had no right to enter upon the possession of their land. But the mortgagors did enter into possession of it and keep the possession from the plaintiffs; and it appears to their Lordships that, having the right and title to the land when the first mortgage was paid oft'', the entry of the mortgagors upon that land to which the plaintiffs had obtained a right under the second mortgage, gave them a cause of action against the mortgagors, the defendants. The Court proceed: "The right of the plaintiffs or their forefather to possession was created by the mortgage-deed of 1840, and was capable of being legally enforced within a period of twelve years. It was the subject of a former suit and of a decree which was fully executed." So it was: but then that decree gave the plaintiff''s a title. The High Court proceeded: "The dispossession of Pohoop Singh after the execution of that decree was not an illegal proceeding." It is true it was not an illegal proceeding because he was dispossessed by persons who had better title, namely, the first mortgagees. The Court go on: "Although lie was thereby deprived of the right ho had obtained, he had a remedy, of which he might have availed himself, by suing within the proper period for the recovery of the money lent by him to the mortgagors. The present suit is clearly inadmissible and cannot be decreed even against the confessing defendants." 7. The High Court held that the plaintiffs'' suit was barred by limitation. 8. It appears, however, to their Lordships, that the plaintiffs having a good title when the first mortgagees were paid off in 1870, their cause of action accrued when the defendants after that period entered into possession of the estate to which they had no title. It appears, therefore, to their Lordships, that there was an error in the decision of the High Court, so far as it regards the question of limitation. 9. But it is said that there was no sufficient evidence that the decree had been obtained by Pohoop Singh, the plaintiff''s'' ancestor. In the first place, as already stated, the written statement of the defendants admits that there was that former decree. They say that "under the former decree, the plaintiffs'' ancestor was in possession for upwards of a year" and then he was turned out by the first mortgagees. Again, when Asaram and Slieo Lall, the first mortgagees, brought an action against the second mortgagee, Partab Singh, the ancestor of the plaintiffs, and Lulloo and others, the zamindars, the mortgagors, were also made parties to that suit. And in that suit, it appears that the decree of Partab Singh against the zamindars was in evidence. The Sudder Court says: "The plaintiff''s sued Lulloo and others, zamindars of the above-named village, for possession on a mortgage-bond, dated the 18th Kower 1859 Sumbat; but in consequence of their having omitted to specify the nature of the tenure, they were non-suited. Pohoop Singh also sued the zamindars on a mortgage-bond and obtained a decree which was upheld in appeal." There was a finding then in that case that Pohoop Singh did sue the zamindars on the mortgage-bond and that he obtained a decree against them. Further when the first mortgage had been paid off and the plaintiff''s had been dispossessed by the mortgagors, they attempted to execute a second time the decree which their ancestor had obtained against the mortgagors, and they applied to the Court for an execution of the decree. The Munsif decided that they were entitled to have an execution. In that suit Simbhoo, who is the present defendant, was one of the parties, and in that case the judgment was produced. The Munsif says: "The record of the case having been brought forward, it appears that the objection of the defendants, judgment-debtors," that is, Simbhoo, one of the present defendants, "is that Pohoop Singh, the original decree-holder, and deceased ancestor of the plaintiffs, had been put in possession by the Court alter the passing of the decree." It appears, therefore, to their Lordships, that; there is sufficient evidence in the cause to justify the first Court in coming to the conclusion that the plaintiffs were mortgagees, and that they obtained possession under a decree founded upon that mortgage. 10. The judgment of the High Court being erroneous, it becomes necessary to consider whether the decision of the first Court can be maintained to the full extent. 11. Now the claim made in the plaint is "to recover possession as mortgagees over the entire 20 biswas zamindari right of mauza Lallpoor, pargana Goree, within the jurisdiction of the Iglass Tahsili, valued at Rs. 5,000,"--the valuation is not a matter of importance,--"the principal amount of the mortgage-loan, and to recover Rs. 6,999-15-0 interest thereon during the period of the mortgagee''s dispossession, as per detail given below, aggregating Rs. 11,999." Now the plaintiffs, although they were turned out of the land, might have sued for the interest. All that they are entitled to, as it appears to their Lordships, is to recover possession of the land; and when they have got possession of the land, if the mortgagors apply to redeem, the question will be--how much is due to the plaintiffs as mortgagees under their mortgage, and how much they are entitled to receive before the mortgagors can redeem? The Judge of the first Court appears to have given them a decree not only for possession of the land, but also for 6,999 rupees interest in addition to the possession of the land. His judgment is not very clear, but it is necessary to make the point perfectly clear as to what the judgment ought to be. He says: "Claim to recover possession as mortgagees over the entire 20 biswas zamindari right in mauza Lallpoor, pargana Goree, valued at Rs. 5,000, principal of the mortgage-loan, and Rs. 6,999-15-0 interest on the mortgage-amount." Then he says: "Ordered that plaintiff''s claim be decreed with costs against the defendants, that the pleaders get their fees." Then he says: "Subject-matter of decree. Recovery of possession as mortgagees over the entire 20 biswas right in mausa Lallpoor, pargana Goree, valued at Rs. 5,000, the principal amount of the mortgage-loan, and of Rs. 6,999-15-0 interest on the mortgage-amount for the period of the plaintiffs'' dispossession : total Rs. 11,999-15-0." If by that decree the lower Court intended to give the plaintiffs a decree not only for recovery of the possession of the land, but also to recover Rs. 6,999 in money as interest, it appears to their Lordships that that judgment, so far as giving a decree for the money as interest is concerned, was erroneous. 12. Their Lordships therefore think that the decision of the High Court ought to be reversed, and that the decision of the first Court should be modified by confining the recovery of the plaintiffs merely to the possession of the land. In that case, the plaintiff''s having got possession of the land, the question, as before observed, will remain open until the defendants seek to redeem the land. Then the question will arise--how much is due to the plaintiffs as the second mortgagees, and for what amount they are entitled to hold possession of the land under their mortgage? 13. Their Lordships, therefore, upon the whole, will humbly recommend Her Majesty to reverse the decree of the High Court, and to affirm the decision of the lower Court, so far only as it decrees possession to the plaintiffs of the land sought to be recovered in the suit. Their Lordships are also of opinion that the appellants are entitled to the costs of this appeal.

-----------------------------------Foot Note------------------------------------- *Before bringing their suit the plaintiffs had endeavoured to recover possession of the laud by applying for execution of the decree obtained by Pohoop Singh in 1840. The "High Court''s order of the 1st April 1872," here referred to, rejected that application on the ground that Pohoop Singh''s decree had been fully executed when, in 1816, ho was put in possession of the laud.