HANS RAJ Vs. BRAHMA NAND

JUDGEMENT

(1.) This second appeal by the plaintiffs has arisen out of the following facts :-

(2.) For reasons given earlier in this judgment, I agree with the learned Court of first appeal that the mortgagors had not bound themselves to repay the mortgage money and that clause (a) supra does not apply. Clause (d) would also not apply because the mortgagees were entitled to the possession of the mortgaged property and the mortgagors had secured them the possession of that property and the disturbance in their possession was not by virtue of any act of the mortgagors or of any person claiming under a title superior to that of the mortgagors.

(3.) In this Court, Shri Puri, the learned counsel for the appellants, wanted to bring his case within clause (b) supra. His main reliance was on the decision of the Judicial Commissioner of Oudh in Sajjadi Begam and another v. Musammat Janki Bibi, 42 Indian Cases 793. Shri Puri argued, on the basis of this ruling, that the compulsory acquisition of the land by the Government amounted to partial or complete destruction or deprivation of the property. If we go through the judgment, it would be found that the destruction of the mortgaged house had taken place in that case by natural causes after proceedings for the acquisition of the property had been initiated. This ruling has hardly any application to the facts of the case now before me. A more pertinent ruling which has been cited before me by Shri Aggarwal, the learned counsel for the respondents, had however been given by a Single Bench of this Court in Babu Ram and others v. Arjan Dass etc., R.S.A. No. 818 of 1963 decided on 3rd October, 1969. The facts in that case may appear to be almost identical. It was observed by my Lord that the usufructuary mortgage of this type did not create a debt and that there was no personal covenant by the mortgagors for the repayment of the mortgage-money and that the compulsory acquisition of the mortgaged property did not amount to any destruction or deprivation. The collateral security for the mortgage amount was substituted by the compensation amount paid for the property by the Government and as the entire compensation amount has been taken in satisfaction of the mortgage amount, the security has been exhausted. The plaintiff-appellants' suit may, therefore, appear to have been rightly dismissed by the learned lower appellate Court.