HAR PRASAD TEWARI Vs. SHEO GOBIND TEWARI

JUDGEMENT

(1.) WE have heard the learned Counsel for the appellant in this case and we think the appeal ought to fail. The facts are that the defendant respondent, Sheo Gobind Tewari, made three mortgages of property in favour of the plaintiff on successive dates. These mortgages were usufructuary mortgages and in the case of the first two the property mortgaged was admittedly portions of an occupancy holding. In the third mortgage the property consisted partly of fixed-rate tenancy and partly of occupancy holding. It appears that after these mortgages were executed, two- thirds of the mortgaged property was lost to the mortgagee owing to its being discovered that the mortgagor had a right in these properties only to the extent of one-third. Having thus been deprived of a portion of the mortgage security this suit was brought by the plaintiff purporting to be a suit under Section 68 of the Transfer of Property Act. The plaintiff asked for a simple money-decree. Both Courts have refused to give him one on the ground that the mortgage contracts were void, being forbidden by the provisions of the Agra Tenancy Act. It has been argued before us that, inasmuch as there was a personal covenant in each of these mortgages, the plaintiff was entitled to resort to those covenants and to ask at least for a simple money-decree, It seems that when these mortgage-deeds were executed a covenant was entered into by the mortgagor on behalf of himself and his successors-in-interest whereby he undertook to pay interest at the rate of 2 per cent. per mensem on the principal sum in case the mortgagee lost possession owing to any default on the part of the mortgagor. WE may mention here that the arrangement was that the mortgagee was to be in possession under these mortgages in lieu of interest.

(2.) IT appears to us that the decision of the Courts below ought to be upheld and we have an authority directly in point in this case in a decision of Mr. Justice Chamier which is reported as Kanhai V/s. Tilak 16 Ind. Cas. 42. That case purports to follow the decision of a Full Bench in Murlidhar V/s. Pem Raj 22 A. 205; A.W.N. (1900) 10 : 9 Ind. Dec. (N.S.) 1167 (F.B.). That Full Bench ruling in turn followed the ruling of a Division Bench in Bhawani Prasad V/s. Ghulam Muhammad 18 A. 121; A.W.N. (1896) 12 : 8 Ind. Dec. (N.S.)787. IT is true that both these latter cases related to transactions of sale. Those were cases in which the vendee sought to get back the purchase money from his vendor when it was found that possession could not be obtained inasmuch as the transaction involved the transfer of sir land and the relinquishment of ex-proprietary rights. We agree with the view taken by Mr. Justice Chamier in the case above mentioned that to enforce an agreement of this kind would be contrary to the provisions of Section 24 of the Contrast Act. Under that section the entire contract is deemed to be void, and that being so, the personal covenants upon which the plaintiff relies in this case and which are embodied in these three mortgage-bonds must fall along with the contract of mortgage. The decision of the Court below must be upheld. The appeal (sic) and is dismissed with costs including fees in this Court on the higher scale.