BHOJOHARI DAS ADHIKARI Vs. BHAGABATI DASI

JUDGEMENT

(1.) This is an appeal on behalf of some of the defendants in a suit to enforce a mortgage security. Dhananjoy Roy, the mortgagor, now represented by his widows, the first two defendants, executed four successive mortgages. The earliest in point of time was executed on the 19th March 1889, in favour of the third defendant one of the appellants in this Court. The second transaction was in favour of one Hare Krishna Maity and took place on the 28th July 1892. This was followed by a mortgage in favour of Titu Charan Dass on the 29th April 1894. The last mortgage was in favour of the plaintiff on the 21st November 1899, and it is stated that out of the consideration for this mortgage, the claim of the third mortgagee was satisfied. The third defendant who is the first mortgagee sued to enforce his security and obtained a decree, on the 24th May 1895. To this decree the parties were the mortgagor and the second and third mortgagees. In execution of this decree, he purchased, on the 22nd March 1897, a parcel No. 16, which has been released in his favour by the Court below. He subsequently obtained a supplementary decree under Section 90 of the Transfer of Property Act and, on the 11th July 1900, purchased the right, title and interest of the mortgagor in the five parcels now in dispute. The second mortgagee, Hare Krishna Maity, also sued to enforce his security and obtained a decree on the 24th November 1902; to this decree, the parties were the mortgagor, and the third and fourth mortgagees, of whom the last is the plaintiff in the present suit. In execution of this decree the properties were purchased by the decree-holder on the 20th March 1905. The third mortgagee, Titu Charan Das, sued to enforce his security and obtained a decree on the 5th August 1897. To this decree, the only party was the mortgagor. The plaintiff, as the fourth mortgagee, now seeks to enforce his security, and the substantial point in controversy between the parties at this stage is, whether this mortgage can be enforced against five parcels mentioned in schedule to the plaint, namely, Nos. 12, 13,14,15 and 17. The contention of the appellant is that the mortgagor had a two-fold right in these lands, namely, a chakdari right (or the interest of a tenure-holder) and a jotedari right (or the interest of an occupancy-ryot), that the superior interest alone was covered by the previous mortgages, while the subordinate interest is covered by her mortgage, and that, consequently, her right in these parcels as mortgagee has not been affected in any way by the sales in execution of the decrees on the previous mortgages. This claim is resisted on a two- fold ground, namely, first, that the mortgagor had no jotedari right in these parcels independent of his chakdari right; and secondly, that if he had a two-fold right, his whole interest was included in the previous mortgages, so that the interest of the plaintiff as fourth mortgagee of the occupancy-right alone was extinguished when she failed to redeem as directed by the decree obtained by the second mortgagee, from whom the third defendant- appellant has subsequently taken a settlement. The Subordinate Judge has overruled these contentions and made a decree in favour of the plaintiff. That decree has been assailed in this Court on the grounds just mentioned. In our opinion, the decision of the Subordinate Judge cannot be supported. The evidence does not establish that the mortgagor had a two-fold right in the disputed parcels. No direct evidence has been adduced in support of the theory that the mortgagor had a two-fold right in these parcels of lands, namely, a superior interest as chakdar or tenure-holder and a subordinate interest, as jotedar or occupancy-raiyat. There is no indication in the evidence that at any time in the history of these parcels, there were in two different persons two distinct rights of the character mentioned. If there had been such evidence available, the question would have arisen, when did the two distinct interests combine in the same person and what was the legal effect thereof. It is not suggested that the mortgagor had any co-sharers in the property and that he could, by any possibility as a share- holder in the chakdari interest, have acquired also the interest of a subordinate tenant and kept it alive. Presumably, therefore, if the two interests existed, when they vested in the plaintiff, the principle of merger would have applied. But whether by any device the two interests, after they have been vested in the same person, could have been kept alive and distinct, is a matter which we need not consider in the present case, because there is no foundation laid in the evidence either to prove the existence of two distinct interests, or to show that if two distinct interests existed, they were vested in the mortgagor or his predecessor-in-interest. Our attention, however, has been drawn to the deposition of one of the witnesses for the third defendant, who stated that after purchase by that defendant, rent was paid to the mortgagor as chakdar. The passage in question is by no means clear and is not sufficient to establish the existence of a jotedari right independent of, and subordinate to, the chakdari right. The learned Vakil for the plaintiff-respondent has laid much stress upon the recitals in the successive mortgage-bonds and upon the description of the property conveyed thereby. In our opinion, these descriptions do not lend any support to the theory that there was a jotedari right independent of the chakdari right. On the other hand, the description in the second mortgage indicates that the whole of the interest of the mortgagor in the property described as the chak of 200 bighas was transferred to the mortgagee. As was pointed out by this Court in the case of joy Dutt Jha v. Bayee Ram Singh 7 W.R. 40 when a proprietor is in possession of nij jote lands, it cannot be said that he has in respect of such lands, an interest subordinate to the proprietary interest, so that when his interest as proprietor disappears, along with it must disappear his interest in the nij jote lands. It is further clear from the decision in Gour Chandra Gajapati v. Mukunda Deb 9 C.W.N. 710 that when the mortgagor effected a mortgage of his interest in the chak, unless there was express reservation, the presumption would follow that he had given by way of security all interests of whatever kind he possessed in the land; for in the words of Lord Coke, "it is a maxim in law, that every man s grant shall be taken by construction of law most forcible against himself, which is so to be understood that no wrong be thereby done," (Co. Litt. 183, a, b,) or, as Lord Selborne puts it, "the words of a deed, executed for a valuable consideration, ought to be construed, as far as they properly may, in favour of the grantee Neili v. Devonshire (1882) 8 App. Cas. 135 at p. 149 : 31 W.R. 622. Upon an examination of the successive mortgages, it is manifest that there was no reservation made by the mortgagor in any of them of an interest in the property described as chak. We must hold, therefore, that even if it were established that the mortgagor had a jotedari right, subordinate to chakdari right, his entire interest was transferred to the second mortgagee, so that when the plaintiff failed to redeem as directed by his decree, his interest in the disputed parcels was extinguished. In this view of the matter, it is clear that the plaintiff is not entitled to enforce her security as against plots Nos. 12, 13, 14, 15 and 17.

(2.) We may add that it was suggested on behalf of the respondents that this position cannot be assumed by the third defendant, because the settlement alleged by him from the purchaser at the sale in execution of the decree on the second mortgage, has not been established. It cannot be disputed that the third defendant, by virtue of his purchase of the disputed plots at a sale in execution of a money-decree against the mortgagor, did not acquire an interest superior to that of the plaintiff; he can succeed, only on the strength of the title, if any, acquired by the purchaser at the sale in execution of the decree on the second mortgagee. The question, therefore, does arise whether the third defendant has established his alleged settlement from the purchaser. In our opinion, the reasons given by the Subordinate Judge for the adverse view taken by him, are by no means conclusive. The alleged settlement is supported by the representatives of the second mortgagee and the surrounding circumstances make such a settlement very probable. The third defendant had purchased these parcels on the 11th July 1900; he had subsequently to face the claim of the plaintiff. The only way, in which he could protect himself, was by acquisition of a title from the representatives of the second mortgagee. This he asserts, he has done, and there is no good reason why he should not be believed. We are, therefore, of opinion, that for the purposes of the litigation it has been proved that the third defendant is entitled to challenge the title of the plaintiff.

(3.) It is worthy of note that if the third defendant had failed to establish his title, the plaintiff would have been met by a fresh difficulty. The plaintiff was bound to bring on the record the representatives of the second mortgagee; if the third defendant is not such representative, the suit has been improperly constituted. It must, therefore, either fail, or be re-tried after all the necessary parties have been brought on the record.