KUMAR KULANAND SINGH Vs. MOHAN MANDAR

JUDGEMENT

(1.) This appeal arises out of a suit upon a mortgage bond dated the 16th February 1905 executed by the defendant No. 1 in favour of the plaintiff against the mortgagor and certain other persons who claimed interests in the properties mortgaged. The defendant 4th party had purchased some of the properties at a sale held in execution of a decree against the defendant No. 1 on the 4th January 1905 prior to the date of the bond upon which the plaintiff sued. The plaintiff, therefore, could not enforce his mortgage against the properties purchased by the defendant 4th party upon a bond executed by the defendant No. 1 at a time when his title to such properties had already passed to the defendant 4th party. He, however, claimed a lien upon the said properties under an earlier bond (sudhharna bond) dated the 23rd December 1901, which covered the properties purchased by the defendant 4th party.

(2.) Both the Courts below have held that although the usufructuary bond dated the 23rd December 1901 had been converted into the simple mortgage bond now sued upon, the intention of the plaintiff was to keep alive the lien under the earlier bond and that the property purchased by the defendant 4th party was subject to this lien. The defendant 4th party has appealed to this Court.

(3.) It has been contended on behalf of the appellant that the lands under the sudhharna bond were to be enjoyed in lieu of interest only and, therefore, the lands were security for interest only and not for the principal, that in case the lands were sold for debts due to other creditors and also in certain other events the mortgagees would be at liberty to realize the money from the sudhharna property and that the lessee shall be held liable for the debt and similar other provisions. It seems to me that the lands were given as security not only for interest but for principal also.