Patna High Court
Shibnarain Mandar And Anr. vs Ramautar Singh And Ors. on 7 February, 1956
Equivalent citations: AIR1956PAT312, AIR 1956 PATNA 312
JUDGMENT Rai, J.
1. Some of the important facts leading to the institution of this second appeal may shortly be stated as follows: One Bihari Belaar had a number of raiyati holdings included within knataa Nos. 15, 52, 64 and 66 situated in tola Beldari appertaining to village Barahmania, district Monghyr. At the time of partition oi the family properties, Bihari Beldar and his two sons got 12 annas share in the raiyati lands appertaining to the above mentioned khatas, and his third son got 4 annas share in those lauds.
Before the date of partition Bihari and his sons had executed on 4-6-1914, . a usufructuary mortgage bond (Ex. B) in favour of Makhan. Choudhary in respect of some of their lands. On 9-8-1913, Makhan Choudhary assigned his right in favour of Kailash, the present defendant No. 7. After partition in the family of Kailash the sud-bhama rignt was allotted to share of defendants 9 and 10 of the present suit. On 21-5-1925, Bihari and his two sons gave in usufructuary mortgage to one Kartic Mandal most of the plots covered by the usufructuary mortgage bond (Ex. B).
On 2C-4-1926, Jagdam, defendant 6, son of Kartic Mander, assigned his right in favour of the plaintiff On 14-6-1946, the plaintiff instituted the present suit for realisation of the amount lent under the mortgage bond dated 21-5-1925, by sale of the mortgaged properties. It was alleged by him that by virtue of the said mortgage bond the predecessors-in-interest of the plaintiff and after the assignment in his favour the present plaintiff had remained all along in possession of the mortgage properties until his possession was disturbed on the 30th of Baisakh 1353 Fasli which led him to institute the present suit.
In the plaint it was alleged that the cause of action arose on the 30th of Jeth 1341 Fasli, the day on which the payment of the amount was stipulated and on the 30th of Baisakh 1353 Fasli when the plaintiff was dispossessed.
2. The suit was resisted by defendants 9 and 10 who pleaded, inter alia, that the usufructuary mortgage bond dated 21-5-1925, was merely a sham document, and it had not created any right in Kartik Mander. It was further pleaded that Bihari and his two sons had no right to give in usufructuary mortgage the plots which had already been so given to Makhan Choudhary by the usufructuary mortgage bond dated 4-6-1914. Thus the defendants also pleaded that the present suit was barred by limitation. On these and other pleas they asserted that the suit was fit to be dismissed.
3. The learned Munsif who tried the suit came to the conclusion that the usufructuary mortgage bond dated 21-5-1925, was a genuine document. He, however, held that neither the plaintiff nor his predecessor-in-interest was ever in possession of the lands included in the usufructuary mortgage bond in favour of Kartik Mander (Ex. 2)). On the question of limitation, the trial court came to tne conclusion that the suit having been filed within 12 years from the date on which the amount was covenanted to be paid was not barred by limitation. On these findings the suit was decreed on contest against defendants 9 and 10 ex parte against the rest.
4. Defendants 9 and 10 thereafter went in appeal before the District Judge of Monghyr which was ultimately dismissed. The learned District Judge also aiiirmed the findings of the trial court on all the points. Defendants 9 and 10 thereafter came up in second appeal before this Court.
5. Learned counsel for the appellants contended before us that the mortgage bond dated 21-5-1925, was really a usufructuary mortgage bond within the meaning of Section 58(d), Transfer of Pro-'perty Act. He placed before us the official translation of that mortgage bond and contended that by that document a usufructuary mortgage had been created and not an anomalous mortgage.
Mr. L. K. Choudhary further argued that on the findings of both the courts below that neitner Kartik Mander nor the present plaintiff -had ever come in possession of the mortgaged properties, the right Co sue 011 the basis oi the covenant contained in Ex. 2 arose; soon after the execution of the mortgage bond. In this connection he drew our attention to the following passage in the bond:
"I, the executant shall pay in cash and in one lump sum the entire amount of debt in Jeth 1341 Fasli and resume direct possession of the mortgaged property. If I fail to pay the debt on the due date of payment, then till the repayment thereof, this very document along with all its recitals and the possession and the occupation of the mortgagee shall remain intact just as before, In contravention of the terms of this deed either overtly or covertly, we the executants or our heirs and representatives shall not dispossess the mortgagee and his heirs from the mortgaged property within or after the period without repayment of the ' amount of debt.
If we do so, we shall be liable to pay the entire debt even before the expiry of the period, with interest at Rs. 3/2/- per hundred per month, from the date of dispossession till realisation from the mortgaged property and also from our person and our other properties. We have therefore executed this usufructuary mortgage bond so that it may be of use when required."
On the basis of this recital, Mr. L. K. Choudhary contended that the cause of action had arisen in favour of Kartick Mander soon after the execution of the usufructurary mortgage bond in May 1925 when he was not given possession by the mortgagors, & he having failed to institute any suit for realisation of the amount covered by the document, the present suit which was filed on 14-6-1946, was clearly barred by time.
In support fflf his contention he relied on the decision in the case of 'Aflruddi v. Joy Chandra Naha', 1930 Cal 703 (AIR V 17) (A), in which the decision in the case of - 'Nar-singh Partab Bahadur Singh v. Moham-mad Yaqub Khan', 1929 PC 139 (AIR V 16) (B), had been relied upon, Mr. Choudhary referred in this connection also to the cases of -- 'Kirti Narayan Singh v. Surendra Mohan Singh', 1934 Pat 624 (AIR V 21) (C) and -- 'Har-nath Singh v. Maiya Ambica Devi', 1941 Pat 301 (A1R V 28) (D).
6. Mr. Goswami, who represented the plaintiffs before us, contended, on the other hand, that the mortgage covered by the bond in question was not a usufructuary mortgage. He submitted that the mortgage combined both,, the elements of a simple mortgage and a usufructuary mortgage-and, as such, the plaintiff was entitled to sue for realisation of the mortgage money by sale of the mortgaged properties within 12 years from the month of Jeth 1341 Fasli when the mortgagor has covenanted to repay the money. He also submitted that even if a cause of action had arisen earlier in favour of Kartik Mander, he could have waived that right and waited until the expiry of the month of Jeth 1343 Fasli when the money was payable and file a suit for realisation of the amount due on that bond within 12 years from that date. In support of his contention he relied on the decision in the case of -- 'Lasa Din v. Mt. Gulab Kunwar', 1932 PC 207 (AIR V 19) (E).
7. In my opinion, the contention raised on behalf of the appellants is well founded in law and must prevail. I agree with Mr. Choudhary that the mortgage in question was a usufructuary mortgage, and that there was no personal covenant to pay as was held in the case cf 'Kamal Nayan v. Ram Nayan', 1930 Pat 152 (AIR, V 17) CD, and in the case of -- 'Jamuna Singh v. Sheonandan Singh', 1941 Pat 486 (AIR V 28). (G).
In the bond in question there is no covenant to pay any interest until the question of dispossession arises. This also shows that the mortgagor did not intend to execute a simple mortgage bond. On the contrary, the mortgagee was entitled to remain in possession of the .properties in New of interest and his possession was to continue until the mortgage was redeemed.
From the plaint of the present suit also it transpires that the plaintiff is seeking to enforce the right which accrued to the mortgagee or his successor-in-interest by virtue of the dispossession from the mortgaged properties because it was only in that event the mortgagee was entitled to realise interest at the rate of Rs. 3 and odd annas per hundred per month which is the amount claimed in the "suit. Thus it is clear that the cause of action for the institution of the present suit was the date of dispossession.
The decision in the case of 1932 PC 207 (AIR V 19) (E), relied on by Mr. Goswami does not apply to the facts and circumstances of this case. In that case the mortgage bond contained the fallowing covenant :--
"In case of default, the said creditor shall, at all times, within and after tne expiry of the stipulated period of six years aforesaid, have the power to realise the entire mortgage money and the remaining, interest and compound interest due to him in a lump sum, through Court; by attachment & sale of the said mortgaged share, as well as from my person and all other kind of my property, both movable and immovable, together with costs of Court, and I, my heirs, relations and representatives shall have no occasion for objection end refusal; that the aforesaid rate of interest, fixed by me, shall stand within and after the stipulated period and after the decree till payment of the entire demand hereunder and that I shall at no time demand reduction in interest."
It was held in that case on the basis of the above covenant that it was open to the mortgagee not to avail of the right that had accrued to him to bring an action for realisation of the entire amount after the default in payment of the interest had occurred and wait until the period of six years had expired. That was the case of enforcement of a simple mortgage bond, and the question that was to be considered in that case was as to the date from which the period of limitation began to run under Article 132, Indian Limitation Act.
In the present case, however, we have to take into consideration" the right of the usufructuary mortgage to bring an action for realisation of the the principal amount after he was dispossessed from the land given in usufructuary mortgage. In my view, the case is clearly covered by the decision in the case of 1930 Cal 703 (AIR V 17) (A).
On the findings of the courts below and on the stipulation given in the mortgage bond in suit, the cause of action to bring an action for realisation of the mortgage money arose when the mortgagee was dispossessed in this case, and the present suit having been filed more than 12 years after that date is clearly barred by limitation.
8. The decision in -- 'Sidramaya V. Danava', 1954 Bom 407 (AIR V 41) (H), also is not of much assistance to the plaintiffs-respondents, because in that case the mortgage bond in question con-tained no specific provision as has been included in the present mortgage bond entitling the mortgagee to bring an action for realisation of the entire amount with interest from the date of dispossession. Their Lordships of the Bombay High Court had referred to this distinction in para. 7 of their judgment, while distinguishing the case which they were dealing with the case reported in 1930 Cal 703 (AIR V 17) (A).
9. The result is that the decrees passed by the courts below are set aside and the suit is dismissed with costs thoughout payable to defendants 9 and 10.
Kanhaiya Singh, J.
10. I agree.