BIDYA RAM Vs. BJAGDAMBA PRASAD

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for possession and injunction restraining the defendants from securing mutation with respect to the property in dispute. On 19 December 1932, the defendants granted a usufructuary mortgage of the property to the plaintiffs. In 1930 the mortgagor applied under Section 4, Encumbered Estates Act. In the schedule the property in this suit was described. The plaintiffs case was that they were kept from the knowledge of these proceedings and also by reason of a certain agreement between them and the defendants, they did not prefer any claim. The usual decrees under Secs.11 and 14 followed and then the proceedings were transmitted to the Collector who took the liquidation proceedings under Section 33 of the Act. The plaintiffs have brought the present suit principally on the ground that it was only the equity of redemption which was described in the Schedule of property appended to the application under Section 4 and that the Collector, in directing the delivery of possession of the property itself, went beyond the scope of his authority.

(2.) The defence, in the main, was that the plaintiffs had knowledge and that the suit was barred by Section 47, U.P. Encumbered Estates Act. The trial Court held that the plaintiffs had knowledge and that no fraud was practised by the defendants. It, however, decreed the suit on the finding that the usufructuary mortgage did not constitute a debt and the mortgagees were not creditors. The lower appellate Court, however, set aside that decree and has dismissed the suit. I must, in second appeal, accept the finding of the learned District Judge that no fraud was perpetrated upon the plaintiffs nor were they ignorant of the proceedings before the Special Judge. Mr. Shiam Behari Lal Gaur who has argued this case with ability and pertinacity, has contended that the transaction in dispute being a usufructuary mortgage, it did not fall within the mischief of the Act, and his rights remained unaffected by the proceedings which culminated in the order passed by the Collector under Section 35 of the Act. He contends that "Debt" according to the definition in Section 2(a) includes any pecuniary liability..." and, after the execution of the usufructuary mortgage, there is no liability subsisting between the mortgagor and the mortgagee; the mortgagor's only right is the right to redeem and the mortgagee has only a right to retain the property. In other words, there is no liability enforceable by the mortgagee personally against the mortgagor and the mortgagor cannot, therefore, be treated as a person liable for the debt. In support of his contention he takes his stand upon Lachhman Singh v. Natha Singh ( 40) 27 A.I.R. 1940 Lah. 401. It is not necessary for me to express any opinion as to the soundness or otherwise of the ratio of this case. Suffice it to say that the Transfer of Property Act has no application to the Punjab and it is only the principles of that Act which were looked to for light and guidance, but only for that purpose and no more.

(3.) In the first place, the Act does not make any attempt to give an exhaustive definition of the word "debt." It merely says that "debt includes any pecuniary liability" an expression which clearly means that it is something more than a pecuniary liability. Liability has been defined in the New English Dictionary - a no mean authority - as "a condition of being liable or answerable by law or equity." Assuming, for the sake of argument, that the contention of the learned Counsel is correct that, after the execution of the mortgage-deed and after he has been placed in possession of the property, the mortgagee has no right to proceed against the mortgagor in person for the enforcement of his claim, the above definition clearly implies the existence of certain rights both in law and equity. That right the mortgagee will be able to exercise if he is deprived of the whole or part of his security or if he is disturbed in his possession. Such a right is recognized, in plain terms, by Section 68, Transfer of Property Act. It is, therefore, manifest that the execution of the mortgage and the delivery of possession does not for all time and in all eventualities, put an end to the right of the mortgagee to proceed against the mortgagor for the enforcement of his claim. Indeed we are not left to speculate, because Section 58(a), T.P. Act, defines a mortgage as the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt.... Section 58(d) speaks of a possessory mortgage, which the mortgage in suit is, in these terms: Where the mortgagor delivers possession (or expressly or by implication binds himself to deliver possession) of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money and to receive the rents and profits accruing from the property (or any part of such rents and profits and to appropriate the same) in lieu of interest, or in payment of the mortgage money, or partly in lieu of interest (or) partly in payment of the mortgage money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee. The important words are "until payment of the mortgage-money." This means that the possession secured to the mortgagee and the benefits incidental to it are the result of the payment by him of the mortgage- money. "Debt" is defined in the Oxford Dictionary as That which is owed or due; (Anything) as money, goods or service s, that which one person is under obligation to pay or render to another. and in Stroud's Judicial Dictionary as - "A sum payable in respect of liquidated money; ! demand recoverable by action." In the Lahore case their Lordships have emphasised the words recoverable by action. To my mind this emphasis is uncalled for. Debt is a debt all the same whatever form the method of its repayment may assume. In the case of a simple mortgage, recovery is possible by means of a suit; in the other case its discharge is assured by means of possession or in the event of non- delivery of possession or loss of possession, by a suit. The suit, therefore, is the last resort in either case and its possibility is not ruled out even in the case of a usufructuary mortgage. The difference between a simple mortgage and a usufructuary mortgage is only this that, whereas in the case of one the claim is enforceable at all times, in the case of the other it is enforceable only in the conditions laid down in Section 68, T.P. Act, i.e., only in certain eventualities. But the law does recognise an obligation on the part of the mortgagor to pay and a right on the part of the mortgagee to enforce that obligation. The pivot on which rests the relationship subsisting between the mortgagor and the mortgagee is the advance made by the former to the latter. This, to my mind, is nothing more than a debt. The case might be approached from yet another point of view. According to the amendment in Section 58(d), T.P. Act, the essence of a usufructuary mortgage is not merely the actual delivery of possession but also an undertaking, either express or implied by the mortgagor to deliver such possession. If the mortgagor fails to deliver possession, he makes himself liable for such measures as the mortgagee may adopt to secure possession. The mortgagee has, therefore, a right to claim possession; the mortgagor has to yield to such a claim. This right in one and obligation in the other flows from the advance made by one to the other. That advance is nothing more and nothing less than a debt, an obligation enforceable in a Court of law. The view which I have taken receives support from Wahiduddin V/s. Makhan Lal .