PITAMBAR PURKAIT Vs. MADHU SUDAN MANDAL

JUDGEMENT

(1.) THIS is an appeal on behalf of the second defendant in a suit to enforce a mortgage security, executed by the first defendant in favour of the plaintiff on the 23 January 1899. The substantial point in controversy in the Courts below related to the genuineness of mortgage instrument, The Court of first instance found that the document was not genuine and dismissed the suit. Upon appeal, the subordinate Judge has found that the mortgage was bona fide transaction and that the deed was executed for valuable consideration. In this view he has made the usual decree for sale. On behalf of the appellant, who is the present owner of the equity of redemption, it has been argued that no decree for sale ought to have been made inasmuch as the mortgage was of an usufructuary character and consequently the mortgagee was not entitled to a decree for sale of the mortgaged premises. In support of the proposition reliance has been placed upon the cases of Luchmeshar Singh V/s. Dookh Mochan Jha 24 C. 677, Arunachalam Chetti V/s. Ayyavayyan 21 M. 476 and Kashiram V/s. Sardar Singh 28 A. 157 : A.W.N. (1905) 226. In order to determine the validity of the contention of the appellant it is necessary to examine for a moment the terms of the mortgage instrument. The mortgagor took a loan of Rs. 465 and executed a mortgage for that consideration. He agreed to re-pay the money on the 12 April 1899. Evidently if the deed stopped here, the transaction would amount to a simple mortgage, but the instrument also provided that the mortgagee would be placed in possession, and during the period of such possession, the profits would be set off against the interest due on the sum advanced. There was a further covenant that if the mortgagee was dispossessed, interest would be allowed at the rate of 37? per cent. per annum on the principal sum. The learned Vakil for the appellant has contended that the mortgage was really of a usufructuary character and the mortgagee was, therefore, not entitled to a decree for sale, although it has been found that he has been deprived of possession of the mortgaged premises by the appellant. In our opinion, there is no foundation for this contention. It is well-settled that, when an instrument of mortgage gives a right to possession and also contains a covenant to pay, thus presenting a combination of a usufructuary and a simple mortgage, the two rights are independent, and the mortgagee may sue for sale, although he may have given up possession. In the present case, there is no doubt that upon the failure of the mortgagor to re-pay the sum on the 12 April 1839, the mortgagee might have enforced the security and obtained a decree for sale of the property. The fact that he has subsequently been deprived of possession of the property, does not take away that right. The decisions relied upon, when closely examined, are found to be of no assistance to the appellant. The case of Luchmeshar Singh V/s. Dookh Mochan Jha 24 C. 677, is clearly distinguishable, because there the mortgage was a pure usufructuary mortgage without a covenant to pay. The case of Arunachalam Chetti V/s. Ayyavayyan 21 M. 476 related to an instrument to which there was no covenant to pay while the case of Kashiram V/s. Sardar Singh 28 A. 157 : A.W.N. (1905) 226 arose out of a transaction in which it was found that there was no hypothecation. In the case before us, there was a hypothecation, and there was also a covenant to re-pay. It is obvious, therefore, upon the authority of the case of Pargan Pandey V/s. Mohatan Mohato 6 C.L.J. 143 which has been followed in (sic) Singh V/s. Jalal Singh 11 C.L.J. 136 : 5 Ind. Cas. 130, that the plaintiff mortgagee is entitled to a decree for sale.

(2.) THE result is that the decree made by the Court below is affirmed and this appeal dismissed with costs.