RAMESHWAR NARAIN SINGH Vs. PANI RAM MODI

JUDGEMENT

(1.) The question which we have to determine in this case is whether the plaintiff is a lessee under the proprietor of the Sikri Estate or whether he is, as the defendant-appellant contends, a usufructuary mortgagee. Early in 1925 the proprietor of the Sikri Estate (who has been sued in this action through the manager) appointed under the Encumbered Estates Act (Act 6 of 1876) was indebted to the plaintiffs-respondents in a sum of Rs. 88,000 by reason of two mortgages, one dated 25 July 1918 and the other 10 January 1922. In those circumstances the plaintiff, the mortgagee, approached the proprietor, and, according to the plaintiff's own evidence: demanded his dues and proposed to the proprietor that a grant should be made of certain villages in thika. As a result on 25 January 1925, the proprietor issued a "parwana" addressed to the plaintiff. The parwana referred to the application to the thika of the mauzas and stated that the thika would be granted on certain terms, being that the ten years nakdi rent less 10 per cent, should be deposited in advance, and that the advance rent should be set off against the dues payable under the mortgage bond, principal and interest.

(2.) One of the conditions was that the receipt acknowledging the entire rent, that is for the term for which the thika pattah was to be granted should be endorsed on the bond. On 1 February an endorsement was made on one of the mortgage bonds showing the full receipt of the dues. On the same day an account sheet was prepared, the substance of which was that the dues under the mortgage bonds were set out, interest was calculated and then credit was given against this total sum of principal and interest from the date of the account year by year to the last year of thika lease, which was to be granted. This was for a period of 18 years and the rent less 10 per cent retained by the lessee as his profit was fixed at Rs. 7,811-8-0. According to the account which is Ex. C in this case, at the end of the lease period which being 1999 Sambat, a sum of Rs. 6,102-11-0 remained as the balance. This balance was cancelled. Then on 5 February a so-called thika pattah was executed. The pattah was in the ordinary form with perhaps the exception of the provision relating to the rent. It recited what had already been arranged, namely, that the rent was taken to be Rs. 8,679-6-0 which less 10 per cent profit to the lessee fixed the rent at Rs. 7,811-8-0.

(3.) This thika lease was of 15 villages, the particulars of which however are quite irrelevant for the purposes of this case. Then on 14 February 1925 the endorsement was made on the other bond showing full satisfaction of the sums due under both the bonds, one of 1918 and the other of 1922. On 23 February 1925, an "Ekrarnamah" was executed by the defendant proprietor. It recited that the two sums due under the two mortgage bonds "are duly found payable by me." It then recited that certain mauzas were taken from the proprietor at a rental fixed, and mentioned that the rent should be set off against the dues and in that way the debts under the mortgage bonds should be liquidated. Then there comes the declaration: Hence I execute this ekrarnama with the stipulations laid down below and do declare that until the expiry of the term of the said thika I shall not be able to dispossess the said thikadara from the thika property. It then recites: Should they be dispossessed, I the declarant shall put them in possession and occupation of the thika property for such period over and above the term of the thika as they will remain out of possession. Should I fail to put them in possession, I the declarant am and shall be liable to pay to the said creditors such amount of their dues as will be left payable from the date of dispossession till the term of the thika after the set-off of the rent of the thika property for the period it had been in possession together with interest at 12 annas per hundred rupees per mensem. Besides this if the said creditors have to incur an expenditure in any suit or case for recovery of possession, I the declarant shall be liable to pay the same to the extent of its proper improved (sic). In such circumstances the dues of the said creditors shall continue to be a charge kefalat upon the properties entered in Schedule ka. The said creditors or their heirs and representatives are and shall be at liberty to recover the same by instituting a suit and by sale of the mauzas specified in Schedule ka and other properties, moveable and immoveable, nami and benami of me the declarant.