MUSAMMAT JALESHWAR KUER Vs. SHEONARAIN SAH

JUDGEMENT

(1.) The proprietors Of a separate patti of a 2 annas 8 pies share in Tauzi No. 2720 in village Kewadi gave a zerpeshgi of their proprietary right on 3 bighas 6 kathas and 9 dhurs to the tenants who were in possession of the mortgaged land. The zerpeshgidars transferred their zerpeshgi rights to the plaintiff. By a subsequent collectorate partition the zerpeshgi land fell to the patti of the proprietors other than the mortgagors, and they dispossessed the plaintiff from the mortgaged land in 1926. In 1930 the plaintiff sued the co-sharers for recovery of the mortgage debt; the original mortgagors were not impleaded. The suit was contested by defendants Nos. 12 and 13 who challenged the zerpeshgi and also denied that the plaintiff had been in possession within twelve years of suit.

(2.) The first Court found that the zerpeshgi was genuine and that the plaintiff had been in possession until dispossessed as a consequence of the partition in 1926. The suit was accordingly decreed. In appeal by the defendants this decision was reversed by the learned Additional Subordinate Judge of Chapra who treated the suit as if it were a suit by the mortgagee for a personal decree against the transferees of the equity of redemption, and in this view of the matter, he dismissed the suit, relying upon the decision of the Privy Council in Nanku Prasad Singh V/s. Kamta Prasad Singh 95 Ind. Cas. 970 : 3 P.L.T. 637 : 26 C.W.N. 771 : A.I.R. 1923 P.C. 54 (P.C.) That was a case of a simple mortgage in which the purchaser of the equity of redemption had agreed with the mortgagor to pay off the mortgage with a portion of the purchase money which was left in his hands. The mortgage sued on his mortgage and obtained a decree for sale of the mortgaged property, and also a personal decree against the purchaser of the equity of redemption. In appeal the High Court followed the decision of the Privy Council in Jamna Das V/s. Ramautar Pande 13 Ind. Cas. 304 : 34 A. 63 : 16 C.W.N. 97 : 11 M.L.T. 6 : 9 A.L.J. 37 : (1912) M.W.N. 32 : 15 C.L.J. 68 : 14 Bom. L.R. 1 : 21 M.L.J. 1158 : 39 I.A. 7 (P.C.), which was an action by a mortgage to enforce against a purchaser of the mortgaged property, an undertaking entered into with his vendor to pay off the mortgage money with a part of the purchase money which had been left in his hands for that purpose. Lord Macnaghten said: The mortgage had no right to avail himself of that agreement between the transferor and the transferee of the mortgaged property,) He was no party to the sale. The purchaser entered into no contract with him and the purchaser is not personally bound to pay this mortgage debt

(3.) The reason is quite clear. A transferee of a mortgaged property takes it subject to the mortgage, but does not undertake the personal obligation of the transferor to repay the mortgage debt. In effect the result of purchasing a property subject to a simple mortgage is that the purchaser is liable to the value of the mortgaged property and no further. Therefore, although the mortgage charge is enforceable against the property in the hands of the transferee, the latter is under no liability for anything in excess of that value. The case of an usufructuary mortgage, however, differs from the case of a simple mortgage in that there is no personal covenant by the mortgagor to repay the mortgage debt, the object of such a transaction being that the mortgage shall repay himself out of the profits of the mortgaged property of which he is in possession. There being no personal covenant in such a case there can be no question of a transferee of the mortgaged property being charged with any personal liability. The present plaintiff not being a simple mortgage could not and does not seek a personal decree in the sense in which that term is used with reference to a simple mortgage. His case is that the defendants having been allotted the mortgaged property by the collect orate partition, it must be presumed that in the partition allowance was made for the existing mortgage, and that, as the defendants have dispossessed the plaintiff, they are bound in equity to repay the mortgage debt. This was the view taken by Ross and Chatterjee, JJ. in the similar case of Janki Saran Singh V/s. Syed Muhammad Ismail 139 Ind. Cas. 525 : 13 P.L.T. 373 : A.I.R. 1932 Pat. 273 : Ind. Rnl. (1932) Pat 241, in which the authorities on the point have been discussed at length. In that case Ross, J., observed at page 377 Page of 13 P.L.T.[Ed] of the Report; In the absence of any evidence it must be taken that the predecessor of the defendants Nos. 2 to 4 in purchasing this property had an allowance made for the existing mortgage; and it is clearly inequitable that they should hold the property free of the obligation. If there had not been any partition it is clear that the lands of defendants Nos. 2 to 4 would have been liable, and I do not see any reason why a partition should discharge their liability