VEDU SHIVLAL Vs. KALU UKHARDU

JUDGEMENT

(1.) This appeal is brought by the original plaintiff to whom in October 1895 the 1st and 2nd defendants mortgaged the land in suit for Rs. 2,000. A term of the mortgage was that the mortgaged property was to remain in possession of the mortgagors, and that they were liable to pay the Government assessment. They continued for some years to pay that assessment, but it fell into arrears for the year 1900-1901 and in consequence the Collector made a demand on the mortgagors for payment. At the same time he made a similar demand on the plaintiff-mortgagee, who refused to pay, I say refused to pay, because he declined to pay except on a certain condition which he was wholly unauthorized to impose. The Collector, therefore, took further steps against the mortgagors, and ultimately in May 1902, he ordered the forfeiture of this land. Afterwards in July of the same year under the provisions of Act VI of 1901 the land was restored to the defaulting mortgagors under the new tenure. In December 1902 the plaintiff filed a suit on the mortgage and obtained a decree. The property now in suit was attached in execution, but the Revenue Authorities raised the attachment under Section 70 of Act VI of 1901. Now the plaintiff s present suit has been dismissed by the learned District Judge on the ground that the plaintiff has no cause of action.

(2.) Mr. Jayakar, who appears in support of the appeal, urges, in the first place, that the forfeiture by the Collector did not affect the equities existing between the parties prior to the default made in the payment of the assessment. He urges also that his client alleges, and should have an opportunity of proving, that the default made in the payment by the mortgagors was made fraudulently, that is to say, for the set purpose of prejudicing the plaintiff s interests by obtaining the forfeiture of the land and its re-grant to the mortgagors on better terms. It seems to me, however, that both these points and they are the only points which counsel has noticed, are answered by the provisions of Section 56 of the Land Revenue Code as that section now stands. I say as the section now stands, because in that condition it embodies an amendment made by the Act of 1901, an amendment that was made prior to the forfeiture in this suit. There can, in my opinion, be no doubt but that under the rules made under Section 214, as they existed in 1902, the Collector was within his powers in restoring this land to the defaulting mortgagors. That being so, the provisions of Section 56 of the Land Revenue Code come into operation, and the result of that operation, in the circumstances of this case, was in my opinion to vest the land in the first and second defendants free from the incumbrance which had been created and from the equities theretofore existing between them and the plaintiff. That would be the result, even supposing that when the first and second defendants omitted to make the payment, they foresaw that, as the result of such omission, the land might ultimately be restored to them upon better terms. It is upon this ground that I think that the plaintiff has no cause of action in respect of either of the reliefs which he claims in the plaint. Those reliefs are that it should be declared that the order of forfeiture passed by the Collector is illegal, and in the alternative that the plaintiff is entitled to all the rights acquired by the first and second defendants by their taking the land under new tenure. I

(3.) For the reasons which I have given, I am of opinion that the Collector s order of forfeiture was perfectly legal, and that the rights acquired after the re-grant by the first and second defendants did not enure for the benefit of the plaintiff. I desire, however, to add that, as a matter of fact, the plaintiff was entitled to save the forfeiture by himself paying the overdue instalment, and that, as I have noticed, he refused to do so even when an explicit demand was made from him.