RAM KHELAWAN Vs. BRIJ LAL

JUDGEMENT

(1.) ONE Mahesh made a simple mortgage of his fixed rate holding in 1910. Upon his death his nephew, Bhagwati, succeeded to the holding. The zemindar took forcible possession of the holding, but Bhagwati took no steps to recover it from the zemindar. The present suit was instituted against the zemindar, who is now in possession, to recover the amount due upon a mortgage. There is no doubt that a mortgage of a fixed rate holding could be legally made under the law. The question is whether the holding has become extinct, and whether the mortgage is enforceable as against the zemindar. In our opinion the inaction as to the recovery of possession of the holding is equivalent to a surrender of the holding. If the holding was surrendered, that surrender would not affect the mortgage in favour of the plaintiffs. The same would be, in our opinion, the result if Bhagwati intentionally abstained from recovering possession of the holding and allowed the zemindar to take possession and continue in possession. The right of the mortgagee is not, in our opinion, extinguished, and this appeal must fail. We dismiss it with costs.