BHAGWAN DEI Vs. MURARI LAL

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff to realize the amount of a mortgage, dated the 13th of July, 1912. The plaintiff alleged that the mortgage was assigned to her on the 29th of August, 1912. Various pleas were taken, and amongst others that the real assignee of the bond was Jamna Prasad, a patwari in Government service, and that consequently the assignment was void. Both the courts below have found that the assignment was taken in the name of the plaintiff for the benefit of her son, the patwari, and have dismissed the suit on the ground that the assignment was against public policy. Section 234 of the Laud Revenue Act provides that the Board of Revenue may, from lime to time, subject to the sanction of the Local Government, make rules consistent with the Act for various purposes set forth in the section, Clause (b) is as follows: "Re-gulating the appointment of Kanungos and Patwaris, their salaries, qualifications, duties, removal, punishment, suspension and dismissal." Certain rules were made by the Board, purporting, I assume, to be under the powers conferred by the Acts. Rule 10 is as follows : Every patwari is forbidden to engage in trade or money lending, under any circumstances to borrow money from any land-holder or cultivator of the circle; and to own or cultivate any land on any tenure within his circle." It is not by any means free from doubt whether Clause (6) of Section 234, authorized the making of this rule, and I do not think that the taking of an assignment of a mortgage can be said to be engaging in trade or money lending. It has not been contended that the rule in itself rendered the assignment void. The next question is whether, apart from this rule, the assignment to the plaintiff was absolutely void as being against public policy. In this connection I think it is not immaterial to remark that the present suit is not a suit to enforce any contract in connection with the assignment of the mortgage to the plaintiff. It is a suit by the transferee of a mortgage against the mortgagor to enforce payment of the mortgage debt. The contract between the transferor and the transferee was completed long ago and the mortgage debt was transferred by a person competent to make the transfer. To succeed, the defendant must get the court to hold that the deed of transfer was absolutely void and that no interest was transferred. I cannot hold this. Apart from this view, it seems to me that the contract to assign the mortgage cannot be said to be contrary to public policy. If there were no rules prohibiting a patwari from taking an assignment of a mortgage, I think no court could possibly hold that his doing so was "contrary to public policy." I am deciding this as a question of law. I quite recognize the objection to a patwari having money-lending transactions or acquiring property or any interest in property in his circle. The courts below have relied upon the case of Shiam Lal v. Chhaki Lal (1900) I.L.R. 22 All. 220 and also on the case of Sheo Narain v. Mata Prasad (1905) I.L.R. 27 All. 73. Both these cases are undoubtedly in favour of the respondents, but I confess that I am unable to agree with the judgement in either of the two cases.

(2.) I would allow the appeal, set aside the decrees of both the courts below and remand the case to the court of first instance. It is quite clear that the patwari must have known that in taking the assignment he was violating conditions of his appointment and I would therefore allow no costs in this Court or in the lower appellate court. Muhammad Rafiq, J.

(3.) The point raised by this appeal is whether an assignment of a mortgage to a patwari is void under Section 23 of Act IX of 1872 as opposed to public policy. The point is not a new one. There are at least two reported cases of this Court where a similar transaction was held to be void because opposed to public policy. See Shiam Lal v. Chhaki Lal (1900) I.L.R. 22 All. 220, and Sheo Narain v. Mata Prasad (1905) I.L.R. 27 All. 73.