RAM RANBIJOY PRASAD SINGH Vs. BADRI UPADHYA

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for redemption. The plaintiff is the 16 annas proprietor of village Dubauli in which one Rachya Lal had a tenure of 21.06 acres of land. On 6 June 1914 Rachya Lal executed a mortgage in respect of this tenure in favour of the defendants for a consideration of Rs. 300. The mortgage which was for a term of four years was a combination of a usufructuary mortgage and a simple mortgage. The mortgage-deed provided that the mortgagees would remain in possession of the tenure and would appropriate its usufruct in lieu of interest after paying the annual rent of Rs. 22-11-0 to the landlord. There was also a stipulation that in case of dispossession, the mortgagees would be entitled to recover the principal with interest at 2 per cent, per mensem by sale of the mortgaged property. The plaintiff's father, who was then the landlord, obtained a decree for arrears of rent of the tenure, and in execution of the decree purchased it on 11 July 1919. Many years later, in 1939, the plaintiff brought a suit for rent against the tenants who were in cultivating possession of the lands comprised in the tenure. The tenants disputed the plaintiff's right to realise rent and pleaded payment to the usufructuary mortgagees, that is, the defendants. The rent suits were dismissed. The plaintiff then brought the present suit for redemption on 28th September 1940. In the plaint it was alleged that though the defendants were bound to pay the rent of the tenure to the plaintiff, they never made any payment to him, and that the amount of rent withheld by the defendants exceeded the rehan money by Rupees 1010-6-9. The plaintiff, therefore, not only claimed possession but also the excess amount said to be due from the defendants.

(2.) The defendants raised various objections, but the only one that is material to the present appeal was that in this suit for redemption the plaintiff could not claim any amount which would be payable to him as landlord on account of rent. The learned Munsif accepted this defence and passed a decree for redemption on the condition that the plaintiff should pay Rs. 300, the principal amount of the mortgage. On appeal by the plaintiff, the learned Subordinate Judge held that the plaintiff should be allowed a set-off for the rent that was legally recoverable up to the date of the decree. This amount was found to be Rs. 113-12-0, He accordingly modified the decree of the learned Munsif to this extent that the plaintiff should pay Rs. 196-4-0 (should be Rupees 186-4-0) only as redemption money.

(3.) The plaintiff, being dissatisfied with this decision, has preferred this second appeal. There is no cross-objection by the defendants. It has been argued by Mr. Sarjoo Prasad on behalf of the appellant that the defendants being liable to pay rent to the plaintiff under the terms of the bond as well as under Section 76(c), T.P. Act, it is most inequitable that the defendants should be allowed to keep in their own hands the money due from them to the plaintiff, and at the same time require the plaintiff to pay to them the money due to him. Reliance has been placed on the cases in Nursingh Narain Singh V/s. Baboo Lukputty Singh (80) 5 Cal. 333 and Bihari Lal V/s. Shib Lal A.I.R. 1924 All. 591. In the first case, Nursingh Narain Singh V/s. Baboo Lukputty Singh (80) 5 Cal. 333, the plaintiff had granted a zerpeshgi lease of certain property to the defendant for a term of years at a yearly rent of Rs. 130 on an advance of Rs. 800. It was agreed that the lessee should be allowed to deduct out of the rent, Rs. 96 as interest on the advance made by him, and the remainder Rs. 34 was to be paid over in cash to the lessor. In the suit, which was brought for redemption, it was held that the plaintiff was entitled to set-off the rent withheld by the defendant against; the money advanced. In the second case, Bihari Lal V/s. Shib Lal A.I.R. 1924 All. 591, the usufructuary mortgage of which redemption was sought provided that the mortgagee should pay to the mortgagor a fixed sum of Rs. 25 a year as "malikana," and that except for this sum, there was to be no accounting between the parties. No "malikana" was ever paid. In the suit which was brought by the mortgagor for redemption, the defendants contended that the plaintiff could obtain the arrears of "malikana" only by means of a separate suit. This contention was overruled and the Court passed a decree for redemption on payment of the principal sum due, less the "malikana" for a certain number of years.