BACHCHU LAL Vs. MOHAMMAD MAH

JUDGEMENT

(1.) These are two consolidated cross-appeals against a decree of the Chief Court of Oudh dated 20th December 1929, which varied a decree of the Subordinate Judge of Unao dated 4 February 1929. Defendants 1 to 3 are the appellants in the first appeal, and the plaintiffs and defendant 4 are the respondents. In the second appeal the plaintiffs are the appellants and defendants 1 to 3 and defendant 4 are the respondents. Defendant 4 has not appeared before the Board.

(2.) The appeals arise out of a suit for redemption of a mortgage. The mortgage deed was dated 21st September 1901, and was executed by Chaudhri Syed Mohammad Mah and his brother Chaudhri Syed Talib Ali in respect of their ten-annas share of the property specified in the deed. The former is one of the plaintiffs in the suit and the latter has since the date of the mortgage died. The other two minor plaintiffs are his representatives-in-interest. The plaintiffs are hereinafter described as the mortgagors. The mortgagee was one Mt. Babuain Ram Dei. She also has died, but in her life-time she transferred the mortgaged property by way of a trust under a deed of settlement dated 28 May 1910, in favour of Pandit Bachchu Lal alias Ram Shankar, defendant 1,and Babu Lachhmi Narain and one master Shambhu Nath. Shambhu Nath has since died, and Babu Lachhmi Narain has relinquished the office of a trustee. Pandit Ram Kishore, Babu Sheo Prasad, defendants 2 and 3 respectively, together with Pandit Bachchu Lal, defendant 1, now represent the trust estate and are hereinafter described as the mortgagees. Madho Shankar, defendant 4, is mortgagee 2.

(3.) The mortgagees entered into possession of the mortgaged property in accordance with the terms of the mortgage. The principal sum of money in consideration of which the mortgage was executed was Rs. 75,000, "bearing interest at the rate of six annas per cent per month repayable in 17 years."The material clauses of the mortgage deed are as follows: "1. That before the execution hereof, we have placed the mortgagee in proprietary possession and occupation of the mortgaged haqiat ; and the mortgagee shall enjoy all powers, i. e., cultivation arrangement, collection (paper torn) from every tenant, mal sewai and other items, the alteration and ejectment of tenants, ejectment on account of arrears of rent, enhancement of rent, suits for arrears of rent due from tenants, like myself. We shall get the mutation (paper torn) in respect of the mortgaged haqiat effected in favour of the mortgagee through the revenue Court according to law should there be any negligence in the matter of mutation of names on our part, the mortgagee has the power to herself file an application and get mutation effected in her own favour, to which we, our heirs and representatives and successors shall have no objection. 2. That after collecting the gross rental, amounting to Rs. 9,058- 8-11, under the jamabandi for 1306 Fasli, in respect of the mortgaged share, as shown to the said mortgagee, and deducting Government revenue, village expenses and Rs. 600 per annum, the pay of servants, etc., settled and agreed upon between us and the said mortgagee the mortgagee shall appropriate the surplus profits towards interest, we, the mortgagors, having no claim for profits, and the mortgagee for interest. 5. That after the expiry of the period provided herein, we having paid the aforesaid mortgage money to the said mortgagee, we shall get the mortgaged property redeemed in the fallow season of the month of Jeth and if we be unable to do so, this mortgage deed having been deemed as sale-deed and this very mortgage money as the sale consideration, the mortgaged haqiat shall stand foreclosed and the mortgagee shall become the absolute proprietor. 7. That if any land appertaining to the mortgaged share is duly acquired for Government purposes and any decrease in the profits payable to the mortgagee, accrues for that reason or if the mortgagee has to pay any other kind of new Government cess with regard to the mortgaged property and the same cannot be realized from the tenants in spite of all legal efforts, then we shall continue to pay this deficit in the annual profits out of our own pocket in cash or from our other moveable or immovable property, we shall be entitled to get the compensation for the land paid by the Government in cash; 8. that at the time of redemption of the mortgaged haqiat we shall have no objection in paying off any arrears due from each tenant, within legal limitation, which could not, in spite of legal efforts, be realized by the mortgagee during her possession as such, the same being paid along with the principal mortgage money ; 9. that the mortgagee shall have no objection against receiving any money, whole or part, within the period stipulated hereunder, which we might pay; and we shall be entitled to a deduction in interest at 6 annas per cent per month, in respect thereof. In case of the payment of the entire amount, the mortgaged property shall stand redeemed in the fallow season of the month of Jeth, the mortgagee having no objection thereto."