HARAGOPAL NANDY CHOWDHRY Vs. DEONITI PRASAD SINGH

JUDGEMENT

(1.) This is an appeal from the order of the learned Subordinate Judge of Gaya, directing that a receiver be appointed in respect of the properties, popularly known as the Jamtara Raj, in possession of the appellants as usufructuary mortgagees. The facts leading up to this appeal are a little complicated; but, in so far as they are necessary for the determination of this appeal, they may shortly be stated as follows: The owner of the properties in question (to be hereinafter described as the mortgagor) executed two mortgage bonds in favour of Babu Eajniti Singh and others (who will be des-cribed in this judgment as the decree-holders), one on 2nd February 1913, for two lacs of rupees, and the other on 6 May 1917, for Rs. 2,86,500, mortgaging several talukas, practically the whole of the raj, extending over an area of about 200 square miles, situated mostly in the district of the Santal Parganas and partly in the district of Gaya. The mortgagor also executed three other simple mortgage bonds in favour of different persons. It is not necessary to go into the details of those transactions, except to state that one of the transactions led to a suit for sale. A decree was obtained by the mortgagee, and the properties sold. At the judicial sale, one Udit Narayan Singh became a purchaser of the properties on 17 May 1940.

(2.) The appellants came to acquire their interests in the mortgagor's properties in the following manner: On 19 December 1926, the mortgagor executed a usufructuary mortgage-bond in favour of the appellants father, securing an advance of Rs. 40,000 and agree, ing to make over possession and management of the properties for 11 years to the mortgagee. The only interest which the mortgagor reserved for himself was the right to receive a monthly allowance of Rs. 1000 but, however, the mortgagee was not given possession of the properties, with the result that a criminal litigation followed in the shape of a cheating case against the mortgagor. It ultimately ended by the parties entering into an ekrar- nama on 13 September 1927, .whereby the mortgagee agreed to advance the further sums of (1) Rs. 15,000 for the payment of the dues of one Kedar Marwari, and (2) Rs. 83,000 to liquidate the debts due to the firm of Than-mal Chunnilal from the mortgagor. It is said that, ever, on the further payments being made by the mortgagee, the mortgagor per-sisted in refusing to deliver possession of the properties to the mortgagee in pursuance of the ekrarnama. This led to another cheating case, resulting in the conviction of the mort-gagor. Ultimately, a title suit, being Title Suit No. 6 of 1928, was instituted by the mortgagee in order to enforce the terms of the mortgage bond and the ekrarnama aforesaid. This suit was eventually compromised on 6 January 1931, the terms of settlement being that the mortgage bond of 1926 and the ekrarnama of 1927, already referred to, were confirmed by the mortgagor, and the mortgagee agreed to make further advance in order to defray the costs of survey and settlement proceeding, which was then in progress. It was as a result of these several transactions between the mortgagor and the mortgagee that the" latter came in possession of the properties It is also said that the mortgagee, the pre-decessor-in-interest of the appellants, advanced about one lac of rupees to meet the costs of the settlement proceeding. It is thus alleged that the appellants predecessor-in-interest advanced in all, in round figures, about two lacs of rupees, besides paying the monthly allowance of Rs. 1000 to the mortgagor until the year 1941, aggregating to about a lac and fifty thousand rupees.

(3.) It now remains to state the events which happened in respect of the mortgages aforesaid of the years 1913 and 1917 in favour of the decree-holders. On 24 March 1931, the mortgagees under those two bonds instituted a suit in the Court of the Settlement Officer under the provisions of Regn. 3 of 1872 to enforce those mortgages, and, by an ex parte order, got the suit transferred to the Court of the District Judge of Gaya, who, in his turn transferred it to the Court of the Subordinate Judge at Gaya for disposal. On 25 July 1931, the plaintiffs in the mortgage suit made an application for the appointment of a receiver of the mortgaged properties, chiefly on the grounds that the mortgage security was insufficient to pay off all the dues on the two mortgage bonds in suit, that the interest on the two mortgage bonds was in arrears, and that defendant 19, the predecessor in-interest of the appellants, had been committing waste by cutting trees, etc. On 17 September 1931, defendant 19, that is to say, the usufructuary mortgagee; who had obtained possession of the properties as aforesaid by virtue of the compromise dated 6 January 1931, opposed the appointment of a receiver, and challenged the jurisdiction of the Court to entertain the suit. On 5 October 1931, the Court made an order, appointing a receiver of the properties. Against that order of the Court below, defendant 19 came up in- appeal to this Court. The appeal was allowed by this Court. The decision of this Court is reported in Nrisingha Charan Nandy V/s. Rajniti Prasad Singh A. I. R. 1932 Pat. 360. This decision of a Division Bench of this Court (of which one of us was a member) has been very strongly relied upon by the appellants in the present appeal, and we shall have to say something about it in the course of this judgment.