Siva Narayan Ram Marwari vs Babu Hari Narayan

Jwala Prasad, J.—This is an appeal against the order and decree of the District Judge of Monghyr, dated the 8th Jane 1917, directing the sale of properties for the realization of money due on foot of a mortgage bond, dated the 13th November 1899, executed by the defendants Nos. 1, 2 and 3 and the father of defendant No. 1 in favour of the plaintiff No. 2. Among the properties directed to be sold was property No. 1. The defendant No. 13, who is the appellant before us, had a prior mortgage over the said property along with others by virtue of a mortgage bond executed in his favour, dated the 31st May 1897, for Rs. 3,833. His contention in the Court below was that the mortgage in favour of the plaintiff was subject to his prior mortgage of 1897. The Court below overruled this contention and held that the mortgage lien of defendant No. 13 was extinguished by the Kabala (sale-deed) taken by him in respect of the property in question from the mortgagors on the 7th September 1901 for Rs. 5,000. Subsequent to the said Kabala, the property was sold along with other shares for arrears of Government revenue on the 20th of March 1911 subject to incumbrances u/s 54 of the Revenue-Sales Act, 11 of 1859. At that sale the defendant No. 13 himself purchased the property and thus he occupied the same position as he had under the sale-deed of 7th September 1901.

The sole question, therefore, for consideration in this case is whether the prior Hen of the appellant is extinguished.

It has bean contended by Mr. Majid appearing on behalf of the appellant that the intention of defendant No. 13 was to keep alive his prior mortgage lien in spite of the sale of the property in 1901. In support of this contention reliance has been placed upon paragraph 18 of the sale deed, Exhibit B.

The translation of the Kabala that was handed to us by Mr. Majid was not correct, as will appear from the translation now made of this document by the Court translator. In the translation handed to us the clause in question in paragraph 18 ran as follows.--"So the effect of the mortgage of the said bond is and shall remain in this Kabala, and also in the case of any dispute in these proceedings the said bond shall remain intact to the extent of consideration money mentioned in this Kabala."

It was not clear from this translation that the prior lien was intended to be kept alive, and the true construction appeared to us to be that the prior lien was by this clause merged into the Kabala. The translation was, therefore, liable to misconstruction. On the original document being read to us, we thought it desirable to have a true and faithful translation of that clause made by the Court translator. This has been done and the clause as translated by the Court translator runs as follows: "Hence the entire mortgage lien under the aforesaid bond shall remain intact and in force with reference to this deed of sale." It may be mentioned that in order to make it good English the words "with reference to this deed of sale" have been put down for the vernacular word Mai" in the document which literally means "in this dead of sale." The effect, however, of both renderings of the word "Mai" in the document, is the same and the Court translation is substantially correct. We would, therefore, accept the translation made by this Court for the purpose of considering the effect of the clause in question. There cannot possibly be any doubt that the mortgagee intended that his prior lien should remain intact and in full force, and the obvious object of it was that the prior lien should continue for his own benefit and as a shield against the subsequent mortgagees.

u/s 101 of the Transfer of Property Act where the holder or the owner of a charge or other incumbrance on immoveable property is or becomes absolutely entitled to that property, the charge or incumbrance is extinguished, unless there is a declaration in express words or necessary implication that the charge shall continue to subsist or such continuance would be for his benefit.

There cannot be any manner of doubt that the subsistence of the lien of defendant No. 13 in this case was for his benefit and it is reasonable to presume that his intention in taking the Kabala was to keep alive his prior lien. Even if the words in paragraph 18 of the Kabala were of doubtful interpretation, the presumption would be made in favour of the prior mortgagee and as against merger. The oases of (1884) ILR 10 1035 (Privy Council) and Yellapadi Mahalakshmammal Vs. Sriman Madhva Siddantha Oonahini Nidhi Limited and Others, , Gopal Chunder Sreemany Vs. Herembo Chunder Holder and Others, are authorities for the aforesaid proposition.

I, therefore, hold that the lien of the defendant No. 13 over property No. 1 created by the mortgage bond of 31st May 1897 was not extinguished by the Kabala of 1901.

The learned District Judge does not appear to have considered the said clause in the Kabala, and no reason has been given by him for holding that the mortgage of the defendant No. 13 was extinguished.

The result is that the appeal is allowed with costs and the decree of the learned District Judge is modified with respect to property No. 1. The property No. 1 will, therefore, be sold subject to the prior lien of defendant No. 13.

We also uphold the order of the District Judge that this property will be pat up for sale after the other properties mentioned in the decree are sold.

Atkinson, J.

I agree.