Ramnandan Parbat and another vs Deni Sahi and another

Dawson Miller, C.J.—The appellants in this case were granted a zarpeshgi in the year 1883 over certain lands measuring 30 bighas odd by the representatives in interest of the defendants in the suit. The mortgagors were share holding proprietors of village Siadhi bearing Tauzi numbers 3911 and 3912 and the mortgage granted by them was not a mortgage of their share in those tauzi numbers but of certain specific bakasht lands of which they had by an arrangement between themselves and their co-sharers, possession at that time. The zarpeshgi deed is in the usual form. The zarpeshgi money was Rs. 1,600. The zarpeshgidars were to be given possession of the mortgaged land and to satisfy themselves by the profits for the interest payable on the zarpesngi money. The Mortgagors were to repay the advance at the end of 3 years but if they did not do so the terms of the mortgage were to continue until the mortgagors did in fact pay off the mortgage money which they might do in Bhado any year after the due date. It appears that some years ago in the year 1892 the share of the mortgagors in tauzi No. 3911 was sold for arrears of Government revenue. The auction purchasers who acquired the interest of the mortgagors subsequently, at some date which is not very clear upon the evidence before us but which is stated to have been in the year 1913, effected a partition between themselves and their co-sharers and the zarpeshgi lands in so far as they were within tauzi No. 3911 fell into the takhta of other co sharers who dispossessed the plaintiffs. Subsequently one of the mortgagors executed a deed of sale in favour of certain purchasers, a portion of the purchase money being retained by the vendees for the purpose of paying off the vendors'' share in the mortgage and, in the result, Rs. 800 out of the Rs. 1,600 originally lent was paid back to the mortgagees. In these circumstances the mortgagees appear to have been content to remain in possession of the remaining mortgage lands as security for the balance of the mortgage money due. In the year 1917 there was also a batwara partition of tauzi No. 3912 and the mortgaged property in so far as it remained in the possession of the plaintiffs, the mortgagees, fell into the takhta of other share holders than the mortgagors, the result being that the mortgagors were then dispossessed entirely of the remaining interest they had in the mortgaged lands. The plaintiffs then brought the present suit on the 18th May 1919 to recover from the defendants who represent the mortgagors the balance of the zarpeshgi money due together with interest since the date of their dispossession. Several pleas were raised in answer to the plaintiff''s claim and amongst others a question of limitation.

The learned munsif before whom the case came for trial decided all the issues in favour of the plaintiffs including the question of limitation.

The defendants then appealed to the Subordinate Judge before whom the questions raised were (1) is the plaintiff entitled to sue for his mortgage money under S. 68 of the Transfer of property Act and (2) is the suit barred by limitation. The learned Subordinate Judge fame to the conclusion that the plaintiffs were not entitled to sue under the provisions of S. 68 of the Transfer of Property Act and having arrived at this conclusion he did not decide the question of limitation. It seems to me that the reasons given by the learned Subordinate Judge for dismissing the plaintiffs'' claim cannot stand. He appears to have been under the impression that the case was governed by the provisions of S. 99 of the Estates Partition Act which provides that "If any proprietor of an estate held in common, tenancy and brought under partition in accordance with this Act has created upon his share or any portion thereof any encumbrance, such encumbrance shall hold good as regards the lands finally allotted to the share of such proprietor and only as to such land;" and being of opinion that the plaintiffs had never attempted to enforce their security upon the share allotted or upon the lands allotted to the mortgagors and had never requested the mortgagors to put them in possession of such lands their case must fail. It may be pointed out in passing that the plaintiffs had by their plaint pleaded that the defendants had not allowed the plaintiffs to take possession either of the asamiwar lands or of the bakasht lands, that the plaintiffs had requested them repeatedly but they paid no heed to their request, hence the necessity of this suit. This plea was not specifically denied in the written statement and so far as the Munsif was concerned it appears to have been accepted as the fact. The learned Subordinate Judge, however, relied upon some evidence given on behalf of the plaintiffs to the effect that they did not serve the mortgagors with any notice of their dispossession. The learned Subordinate Judge was also of opinion that the last clause of S. 68 of the Transfer of Property Act had not been complied with. That clause provides for cases where the mortgaged property has been wholly or partially destroyed or the security has been rendered insufficient within the meaning of S. 66 of the Transfer of Property Act and enacts that in such cases apart from the wrongful act or default of the mortgagor or mortgagee the mortgagee may require the mortgagor to give him any sufficient security for his debt and if the mortgagor fails so to do may sue him for his money. With great respect to the learned Subordinate Judge I think he failed to appreciate the real nature of the present case. The case is not one which comes under that part of S. 68 to which I have referred nor is it a case which is governed by S. 99 of the Estates Partition Act. There is no question here of the mortgaged property having been wholly or partially destroyed or the security rendered insufficient. Similarly it is not a case of a proprietor of an estate held in common tenancy who has created an encumbrance upon his share or a portion thereof. The mortgage granted in this case was a mortgage not of the mortgagors share in the estate but of specific lands of which the mortgagors were in possession by an arrangement with their co-sharers and the provisions of S. 99 of the Estates Partition Act appear to me to have no application to such a case. The section which does appear to me to govern the case is S. 68 clause (c) of the Transfer of Property Act which provides that where the mortgagee being entitled to possession of the property the mortgagor fails to deliver the same to him or to secure the possession thereof to him without disturbance by the mortgagor or any other person then in such a case the mortgagee has a right to sue the mortgagor for the mortgage money. What happened in the present case was that after the partition the plaintiff''s were dispossessed of the property of which they were in possession under the zerpeshgi. They could not resist that dispossession and therefore they were bound to give up possession and the result is that the mortgagors have failed to secure the possession of the property to the mortgagees and in such a case the statute expressly provides that the mortgagees hare a right to sue for the mortgage money. The question arose for determination in the Calcutta High Court in the case of Talik Singh v. Jahal Singh [1916] 11 C.L.J. 136 - 5 I.C. 130 which is a case practically on all fours with the present case. " A usufructuary mortgagee " says the head note in that case " can bring a suit for mortgage money on dispossession from land given in lieu of interest, by a co-sharer of the mortgagor who obtained the same on partition and is not precluded from so doing by S. 99 of the Estates Partition Act." In that case the facts were for all material purposes the same as in the present case. It was a case of a mortgage not of a share in an estate but of certain specific lands of which the mortgagors were in possession. There was a subsequent partition and the mortgagees were turned out by the share holders in whose takhta the mortgaged lands fell and it was held that S. 99 of the Estates Partition Act had no application to a case of that sort. It wa3 further held that the case fell directly within the provisions of S. 68 clause (c) of the Transfer of Property Act and that under that section the mortgagee was entitled on being dispossessed after the batwara to sue for the mortgage money. In my opinion this appeal must succeed and the decision of the learned Subordinate Judge must be set aside but as he has not come to any decision upon the question of limitation and we are not in possession of the facts upon which that question depends the case must be remanded to the lower appellate Court to be disposed of upon the second point which was raised, namely, whether the suit is barred by limitation. The appellants are entitled to the costs of this appeal. The other costs in the suit will abide the result of the lower appellate Court''s decision on the question of limitation.

Kulwant Sahay, J.

I agree.