The Deputy Commissioner of Rae Bareli vs Lal Rampal Singh

Richard Couch, J. 1. The suit in this case was brought by the present Appellant. The plaint prayed that under the terms of an instrument of mortgage, dated the 10th of March, 1874, possession as mortgagee of thirty-one villages specified in that instrument of mortgage should be awarded to the Plaintiff. At the time of filing the plaint the Respondent Rajah Rampal Singh was not in possession of the villages. The person in possession was Dirgaj Kunwar, his mother. Rampal Singh was made a Defendant on the ground that under the circumstances which were stated in the plaint he was liable to pay the original debt, and was the real owner of the mortgaged villages. Dirgaj Kunwar was made a Defendant as being the party in possession. The plaint was filed on the 31st of March, 1880. On the 11th of June, 1880, there were proceedings for mutation of names. It is not necessary to go into the particulars of those proceedings, the result of which was that Rampal Singh came into possession, and on the 14th of June, in his written statement in the suit, he defended it as being in possession, and Dirgaj Kunwar in fact became no longer a real party to it. The contest is between the present Appellant and Rampal Singh. The only question which is now raised is upon the construction of the mortgage of the 10th of March, 1874. 2. The terms of that mortgage, after reciting particulars shewing how it came to be entered into, are these:--After stating that there was to be a mortgage for Rs. 50,000, with a promise to pay it up in five years, from 1875 to 1879, it proceeds,--" Therefore I, while enjoying sound health and proper senses, do hereby mortgage without possession to the Shahzada, in lieu of Rs. 50,000, being the balance of the consideration of the above-mentioned decree, the following villages, as per boundaries given below, situate in the above-named pargana and district, together with all vested and contingent rights, the gross rental of which is Rs. 18,253 12a. 3p., and the Government revenue, Rs. 7986; my husband having gifted them to me by a deed of gift dated the 2nd of June, 1873, with power to sell or mortgage or transfer in every way the proprietary right, and I holding possession thereof: Rajah Hanwant Singh, my father-in-law, has also recognised the fact by the decree dated the 7th of September, 1871; and in case of change of heirs from time to time this property cannot be taken out of my possession; and I covenant as follows:--1. I will pay Rs. 10,000 per annum at both crops to the Shahzada Sahib, and out of that amount his servants will first deduct the interest, whatever it may come to by calculation, and then credit the balance towards the principal: and in case of any disorder which may cause default in payment of the instalment the servants of the Shahzada Sahib Bahadur, taking complete possession of the mortgaged estate, will hold themselves liable for the payment of the Government revenue, including land revenue and cesses of all sorts, and having first deducted from the savings the cost of making collections at the rate of 10 per cent. on the gross rental on account of the pay of servants, will credit the balance towards the instalment money; at the end of each year, in the months of May, June, November, and December, having made up accounts, they will note the date of realization. Till the time the accounts are made up there will be no claim or objection on my part to set off the interest against the amount collected; on the other hand the amount collected will be considered as amount in deposit." To stop here for the present, there is here a distinct provision that upon default in payment of an instalment the mortgagee by his servants was to take possession of the mortgaged property, and to collect the revenue, and apply it towards the payment of the instalment. The words are :--" The servants taking complete possession." That evidently shews that possession was to be taken, the mortgagee was to have power to take possession on the non-payment of an instalment. What is said by the District Judge in his judgment is very pertinent to this part of the instrument. He says, " The question involved in the fifth issue now remains to be determined, viz., whether under the terms of the deed of mortgage the Plaintiff is entitled to sue for possession. The words of the deed, so far as they bear upon this point, have been carefully read and considered by me in the original Hindustani, and a literal translation has been given above in this judgment. There is no doubt that there is some ambiguity in the language of the deed. That a breach of the condition as to regular payment of instalment has taken place is not denied on behalf of the defence; but it is contended that such breach having taken place the Plaintiff''s only remedy is to sue for the recovery of the mortgage debt, and that the Plaintiff''s right to enter into possession was intended to be contingent upon the wish of the mortgagor. For this contention the defence relies upon these words of the deed:--''And if this be not agreeable to me then immediately on the happening of the breach of promise, after the end of the year, they may realize the entire instalment money, &c.'' It is contended by the defence that the word ''this'' (yeh), used in the above sentence, applies to all the preceding conditions in the deed, and that it makes the condition of taking possession entirely dependent upon the mortgagor''s wish. But I am of opinion that this is not a fair construction of the Hindustani words as they are used in the deed. The language of the deed shews that the power of obtaining possession on failure of regular and full payment of instalments was given absolutely, the words used being, ''kabya karke'' (having taken possession), and emphasised by the words ''si wakt,'' at once, which, read together, indicate absolute power to take possession." Therefore we have in the first part of this instrument an absolute power on the part of the mortgagee to take possession on nonpayment of an instalment. That this was contemplated is shewn also by the provision at the end of the instrument, which says :--" Should, on the expiry of the term of this instrument, any money remain due, then, till the payment thereof, possession will continue according to the terms herein set out." Then, after the passage which has been read, comes the part upon which the Respondent relies. " If I do not accept this, then as soon as the breach of promise occurs they will at the end of the year realize the whole amount of instalment by sale of the villages and of other moveable and immoveable property belonging to me. Should in any way any objection be raised by me, or by my husband, as between us or in Court, it will be void." The contention on the part of the Respondent is, that these words apply to all the previous part of the deed, and that the mortgagee could not take possession, except at the option of the mortgagor, and if the mortgagor thought fit to say that the mortgagee should not take possession but should realize the amount of the instalment by sale of the villages, that course must be adopted, and a suit for possession could not be maintained. Now the consequence of putting such a construction as that on this part of the instrument would be to make it not consistent with the former part, which gives a power to take absolute possession. The instrument must be taken as a whole, and that construction must be put upon it which will be a reasonable one, and will give effect to all the parts of it. A construction which will give effect to all is that the words, "If I do not accept this " may be referred to the part which immediately precedes that passage, namely, that which provides for the setting off the interest against the amount collected by the mortgagee when in possession. The other construction would not only not give the proper effect to the first part of the instrument, but it would also involve what could scarcely have been contemplated by the parties, viz., that the only security, the only remedy which the mortgagee would have if the mortgagor thought fit to insist upon it, would be that upon default in payment of an instalment he would be obliged to sell a portion of the property so as to realize the amount of that instalment. That can scarcely have been in the contemplation of the parties. The instrument must be looked at as a whole, and in their Lordships'' opinion the reasonable construction is that there was an absolute power to the mortgagee to take possession on default in payment of an instalment, but if the mortgagor objected to the mortgagee applying the rents in reduction of the principal and interest, the mortgagee might sell the mortgaged property and the other property which Was brought into the security, in order to satisfy the debt. This seems to their Lordships to be the reasonable construction of the instrument. It is the construction which the District Judge put upon it, but which the Judicial Commissioner thought was wrong, and therefore reversed his judgment. 3. Their Lordships will humbly advise her Majesty to reverse the decree of the Judicial Commissioner, leaving the judgment of the District Judge to stand, and the Respondent will pay the costs of this appeal, and the costs of the appeal in the Court of the Judicial Commissioner.