MADAN MOHAN LAL Vs. NAND RAM

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the plaintiff on the basis of a deed of simple mortgage executed on 23 July 1927, by Mohammad Raza, Muhammad Sher and Ahmad Ali. Muhammad Sher and Ahmad Ali were the first two defendants. Defendants 3 to 7, Mt. Batulan, Mohammad Ahmad Khan, Mohammad Mustafa Khan, Mt. Amna Begam and Mt. Alhamdu, were the heirs of Muhammad Raza. The other defendants were subsequent transferees. The property mortgaged consisted of two zamindari mahals and a bazar in Kamalganj. The defendants raised the plea that the mortgage deed had not been properly executed and that there, was no consideration for it, but these points were decided against them and learned Counsel no longer presses them. Defendants 8 to 14, Madan Lal, Durga Prasad, Ram Chandra, Gansi Lal, Madho Ram, Bhagwati Prasad and Hardeo claimed a right of priority under three mortgages executed on 21 April 1921, 10 August 1922 and 8 March 1926. Defendant 18, Bhajan Lal, claimed priority under two mortgages dated 2 November, 1925 and 6 December 1926. All these mortgages were upon the bazar in Kamalganj and not upon the two zamindari mahals. These defendants also claimed under the provisions of Secs. 81 and 56, T.P. Act, that the two zamindari mahals should be sold before the bazar and that the bazar should be liable only for the balance of the amount left due, if any, after the sale of those mahals. There was also a defence on the basis of the Agriculturists Relief Act, it being alleged that the mortgagors and the other defendants were agriculturists, but it was held by the learned Judge of the Court below that the defendants could not take advantage of the provisions of the Act because it had not been shown that they were all agriculturists.

(2.) Learned Counsel for the appellants, that is, defendants 8 to 14 and defendant 18 does not press that point before us. The two questions which we have to decide are whether the appellants have a right of priority under the mortgages which we have mentioned and whether they have a right to compel the plaintiff to sell the two zamindari mahals before he sells the bazar upon which they have a charge. Upon the second point, we may mention that defendants 8 to 14 are subsequent vendees of the property in the bazar and that defendant 18 has a subsequent, mortgage upon this property. On the question of priority, learned Counsel for the plaintiff-respondent is constrained to admit that there is no doubt that defendant 18 has a prior charge and that the property must be sold subject to that charge. He undoubtedly had these two prior mortgages in his favour and no event occurred which would deprive him of his charge upon the property. About the other appellants, that is, defendants 8 to 14, the question has been raised on behalf of the plaintiff-respondent whether their mortgages were not extinguished under the deed of sale in their favour. Learned Counsel argues that the money for the redemption of these mortgages was left with these defendants-appellants at the time of the sale and ho urges that it must be inferred from this fact that the mortgages were redeemed and no longer exist. Learned Counsel for the appellants has drawn our attention to the provisions of Section 101, T.P. Act, as now in force. This section says: Any mortgagee of ... immovable property ... may purchase or otherwise acquire the rights in the property of the mortgagor ... without thereby causing the mortgage ... to be merged as between himself and any subsequent mortgagee of ... the same property; and no such subsequent mortgagee ... shall be entitled ... to sell such property without redeeming the prior mortgage.

(3.) It seems to us that the terms of this section are perfectly clear. We do not say that it may not be possible for the parties to contract themselves out of this provision of law, but we consider that a contract which did operate to deprive the prior mortgagee of his charge upon the property when he became the owner of it under a sale would require to be a very clear one. It does not seem to us that a mere mention of the amounts due upon the prior mortgages at the time of the sale would be sufficient to justify the conclusion that the parties intended that the rights of the prior mortgagee should be merged in the rights of the vendee. The real fact was that the property itself was transferred to meet the charges in favour of the prior mortgagees and there was no question of paying them off by transferring any money to them. They took the property in lieu of the charge upon it and it clearly was not intended that they should lose the property upon a claim by any subsequent mortgagee whose rights were inferior to their own. We may mention that some argument has been addressed to us because a sum of Rs. 6072 was left with the vendees for payment of debts due upon certain documents and pronotes. It was urged by the plaintiff that this sum was left with the vendees for payment to him and therefore there was a special reason why he should be entitled to sell the property in the bazar for the satisfaction of his mortgage.