CHHADAMRAI Vs. RAM NARESH MISIR

JUDGEMENT

(1.) This is a plaintiffs appeal under the Letters Patent from a decision of a learned Judge of this Court. On 24 June 1918 a man named Ganpat executed a bond in favour of two brothers, Meghu Rai and Rekha Rai, for a sum of Rs. 399-15-9 with interest at 9 annas per cent, per mensem. Under the terms of the bond the executants covenanted that he would regularly pay the interest, amounting to Rs. 27 a year, and it was agreed that in default of any payment of interest the obligee would be entitled to take possession of four specified plots and enjoy their usufruct in lieu of interest. These plots were Nos. 28/3, 10, 5/3 and 137. It was further provided that, if at any time the executant paid the money which had been advanced, he would be entitled to resume possession of the aforesaid four plots. I shall have occasion to consider the terms of the bond in greater detail at a later stage, for the appeal depends entirely upon the interpretation of this document.

(2.) On 30 May 1923 the heirs and legal representatives of the obligor executed a permanent lease in respect to plot No. 28/3 in favour of defendant 8; on 6 July 1926 they executed a usufructuary mortgage of plot No. 10 in favour of defendant 9; on 20 July 1929 they executed a permanent lease in respect to a portion of plot No. 5/3 in favour of defendant 6; and on 22 July, 1929 they executed a permanent lease in respect to another portion of plot No. 5/3 in favour of defendant 7. By the last-mentioned date the property specified in the bond of 24th Jane 1918 had all been transferred as a, result of these leases and usufructuary mortgage except plot No. 137--which is a bamboo clump--and l biswa, 11 dhurs out of plot No. 5/3. The transferees were duly put in possession of the property and the lessees have put up constructions. On 11 January 1937 Rekha Rai, one of the original obligees, and the successors-in-interest of Meghu Rai, the other obligee, instituted a suit to enforce the bond of 24 June 1918. Their case, briefly stated, was this: The interest under the bond of 24 June 1918 was duly paid until June of 1938, when default was made; and they then obtained possession of the four plots, except a portion of No. 28/3. In 1936 they were dispossessed by the transferees. They accordingly prayed for possession of the four plots and, alternatively, for a decree for money and for sale upon the alleged mortgage bond. They also claimed damages, but we are not now concerned with that claim.

(3.) Defendants first set were the legal representatives of Ganpat, the original obligor of the bond, and defendants second set were the transferees, Both sets of defendants contested the suit and set up various pleas, including a plea of limitation; but the only plea we are concerned with in this appeal was a plea that the bond of 24 June 1918 was a simple money bond at its inception, but was liable to be converted into a usufructuary mortgage on default of payment of interest; and since this did not occur until 1932 -- according to the allegations in the plaint -- the usufructuary mortgage in favour of the obligees was postponed to the permanent leases and the usufructuary mortgage which were effected in favour of defendants second set. During the pendency of the suit, the matter was compromised as between the plaintiffs and the defendants first set, it being agreed that the claim of the plaintiffs for possession of the property be decreed and that quoad ultra the claim be dismissed.