BIHARI LAL Vs. DURGA DAS

JUDGEMENT

(1.) This appeal arises out of a suit for the redemption of a usufructuary mortgage made on the 12th of November 1880, by three persons, namely, Mulch Ram Singh, Kanbai Singh and Durjan Singh, in favour of Ram Dayal, Behari Lal and Kishori Lal, the predecessor-in-title of the defendants-appellants. The property comprised in the mortgage was a 10-bisw-is, 13 1/4--biswansis, share in the village of Mukimpur. In this property the share of Mukh Ram was 8 biswas and the remainder belonged to the other two mortgagors. The amount secured by the mortgage was Rs. 8,500 and the term of the mortgage was ten years. The plaintiffs are the assignees of the interests of same of the mortgagors. It is common ground that in execution of a decree obtained upon a prior mortgage of 1874 the shares of Kanhai Singh and Durjan Singh, namely, 2 biswas 13 1/4 biswansis was sold by auction and passed out of the possession of the mortgagees in 1686. The mortgage-deed in suit provides that the rate of interest was 12 annas per cent, per mensem, i.e., Rs. 9 per cent, per annum, that the usufruct was to be taken in lieu of interest, and that the mortgagees were not to claim interest on the mortgage-money, nor were the mortgagors to claim profits of the mortgaged property so long as the mortgage subsisted. A partition took place about the year 1890 and under that partition the properly remaining in the possession of the mortgagees was formed into an eight-biswa mahal. The plaintiffs claimed possession of the whole of the mortgaged property and made parties to the suit the persons who had purchased the 2 biswas 13 1/4 biswansis share mentioned above in execution of the decree passed on the earlier mortgage of 1874. They offered to pay to the defendants Rs. 8,500 the principal amount, of the mortgage. The defendants contended that in addition to that amount they were entitled to be recouped the loss of interest sustained by them by reason of the 2 biswas, 13 1/4 biswansis share having passed out of their possession. They further contended that as the revenue of the mortgaged property had been enhanced after the mortgage they were entitled under the terms of the mortgage to the difference between the revenue which existed on the date of the mortgage and the enhanced revenue which they subsequently had to pay. They also claimed the costs of the construction of certain indigo vats and the costs of partition proceedings. The fourth item which they claimed was arrears of rent due by tenants up to time when the plaintiffs sought to redeem the mortgage and this item they said they were entitled to, under the terms of the mortgage-deed. The Court below has made a decree in the plaintiff s favour for possession of the 8 biswas share which remained with the mortgagees after the sale of the remainder of the mortgaged property. It has awarded to the defendants the costs of building two vats and arrears of rent for one year only and it has disallowed the other items claimed by the mortgagees-defendants. This appeal has been preferred by the defendants mortgagees, and the plaintiffs have put forward objections under Order XLI, Rule 22 of the Code of Civil Procedure. We will deal, first of all, with the appeal of the defendants. The first item which they claim in the appeal is the item of loss of interest to which we have referred above. As to this, the contention on their behalf is that the amount of the usufruct of the whole of the mortgaged property was equivalent to interest at the rate of 9 per cent, per annum as mentioned in the mortgage-deed; that they have not received and enjoyed the usufruct of the whole of the mortgaged property by reason of a part of it having passed out of their possession in satisfaction of the earlier mortgage of 1874, that they have thus received a smaller amount of usufruct than that which they would have obtained had they been in possession of the whole of the mortgaged property, and that the difference should be made good to them by the plaintiffs who now represent the mortgagors. It appears that a suit on the earlier mortgage of 1874 was pending at the time when the mortgage in favour of the ancestors of the defendants was executed. It is, therefore, clear that they took their mortgage, with full knowledge to the prior mortgage and subject to the result of the litigation then pending. They were thus taking a mortgage of property in regard to which there was considerable risk of its passing out of their possession and of which they were in fact deprived in the year 1836. They have remained content with the usufruct of the remainder of the property for so a long period as 24 years. It is, therefore, reasonable to assume that when they took the mortgage it was understood that the interest on the money advanced by them would be the usufruct of so much of the mortgaged property as would remain in their possession. Had this not been so, the mortgage-deed would have contained a clear and specific provision for the payment of loss in interest. That such was the intention of the parties appears from the fact that when the appellants were deprived of 2 biswas, 13 1/4 biswansis they acquiesced in the loss of that portion of their security and were content to enjoy the usufruct of the remainder of the property in lieu of the interest payable to them. They are, therefore, not entitled to claim the difference of interest after the lapse of such a long period. This case is very similar to the case of Partab Bahadur Singh v. Gajadar Bakhsh Singh 24 A. 521 and the case of Khuda Bakhsh v. Alim-un-nissa 27 A. 313. The principle of those rulings in our opinion, fully applies to the present case. Toe Court below was, therefore, right in not allowing this part of the appellants claim.

(2.) The next item claimed by them in this appeal is the amount of enhanced revenue. The provision in the mortgage-deed relating to revenue is as follows: "if at a future Settlement, the Government revenue or cesses due to Government be assessed at a higher rate and profits be thereby reduced, we shall pay the amount enhanced along with the mortgage-money at the time of redeeming the mortgage. Prom this Clause it is manifest that the mortgagors would be liable at the time of redemption to pay the enhanced revenue only if by reason of such enhancement the profits arising from the property were diminished. It was, therefore, for the defendants to prove that there was redaction in the profits. The Court below wa3 of opinion that they had failed to adduce sufficient evidence to establish a reduction of profits. We think that in this respect also the Court below is right. No doubt, the rent-roll kept up by the Patwari shows that a smaller amount of rent is realized from the property. But at the time of Settlement the Settlement Officer found that the rent-roll was incorrect, and although it showed Rs. 1,165 as the income arising from the whole village in 1288 Fasli, it was in reality something like Rs. 1,815. The learned Additional Judge has given other reasons for the conclusion that the rent-roll is incorrect and that the accounts produced by the defendants cannot be relied on. Had the income arising from the village been so low as appears from the rent-roll and the accounts, it is highly improbable that the appellants would have continued in possession and would not have, shortly after the enhancement of revenue, sought, to recover the money due to them. We think that the appellants have failed to establish their allegation that there was a reduction in profits and they have certainly failed to satisfy us that the decision of the Court, below on this point is erroneous.

(3.) The next item claimed by the appellants is the item of arrears of rent. The mortgage deed provides that at the time of redemption the mortgagors should pay arrears of rent due by the tenants in the village. The Court below has allowed arrears of rent for one year only. In this respect we think the learned Judge has committed an error under the terms of the mortgage the mortgagees would be entitled at the time of redemption not only to arrears for the year preceding the date of redemption but to such arrears as could at that time be lawfully recovered from tenants. The object apparently was that at the time of redemption such arrears should be paid by the mortgagors and that they should after redemption recoup themselves by realizing the amount so paid from the tenants from whom it was due. The appellants are, therefore, entitled to arrears for three years. As to the amount of such arrears we have before us the evidence of the defendant Jugal Kishore who after referring to his account-books stated that the total amount due by tenants for the years 1314, 1315 and 1316 Fasli was Rs. 1,338-3-1, oat of this sum the Court below has awarded to the defendants Rs. 863-11-1 namely the arrears for 1316 Fasli. In this respect it has accepted the correctness of the accounts of the defendants. There is nothing to show that the statement of Jugal Kishore, corroborated as it is by the entries in his account-books, is incorrect. Therefore, in oar opinion, the defendants-appellants are entitled to a further sum of Rs. 474-8-0, namely the difference between the sum of Rs. 1,338-3-1 and Rs. 863-11-1 mentioned above. To the extent of this additional sum of Rs. 474-3 the appellants appeal mast second. The appellants also claim interest for the period of the pendency of the suit. This certainly cannot be allowed to them, as they were in possession before the decree was passed. These are the only items which have been claimed in this appeal in the argument before us. As to the abjections preferred on behalf of the respondents, the first item is the item of Rs. 1,372-12-6 which the Court below has allowed to the defendants on account of the construction of indigo vats. It is admitted that these vats have been built on a piece of land 3 bighas, 2 biswas in extent, of which a perpetual lease was granted to the mortgagees. This piece of land was excluded from the mortgage, as is manifest from the qabuliat executed by Shib Singh and others to whom a lease of the mortgaged property was granted on the date of the mortgage. As this piece of land is not a part of the mortgaged property, and as the mortgagees are in possession of it, not in their capacity of mortgagees but as lessees under a perpetual lease, they are not entitled under the terms of the mortgage to the costs incurred by them in constructing indigo vats on this land. No daubt, under the terms of the mortgage the would have been entitled to the costs of building vats upon land which formed part of the mortgaged property. But the land on which the vats in question were built not being included in the mortgage the mortgagee s claim in respect of the costs of building these vats ought not to have been allowed. The decision of the Court below on this point must be set aside.