MAHARAJAH RAM NARAYAN SINGH Vs. ADHINDRA NATH MUKERJI

JUDGEMENT

(1.) THIS is the re-hearing of an appeal from the High Court at Calcutta, dated the 30th August 1911, which set aside a preliminary decree of the Subordinate Judge and remitted the case to the Court of the Subordinate Judge to be dealt with in accordance with certain directions contained in the judgment of the High Court. At the original hearing the present respondent did not appear and the appellant obtained an order setting aside the decree of the High Court at Calcutta and dismissing the action in which the appeal arose. Subsequently the respondent obtained an order of His Majesty discharging the order thus made, on the ground that it was by the fraud of his agent that he was not represented by Counsel at the hearing and directing the appeal to be re-heard, the costs thrown away to be dealt with upon such re hearing. The appeal has accordingly been re-heard before their Lordships, who have had the advantage of hearing Counsel on both sides.

(2.) THE facts out of which this action arose may be stated as follows:--In the year 1S96, Maharajah Sri Sri Ram Narayan Singh Bahadur (whom their Lordships will hereafter refer to as the mortgagor) executed in favour of Rai Jadu Nath Mukerji Bahadur (whom their Lordships will hereafter refer to as the mortgagee) a deed dated the 14th April in that year. This deed recites that the mortgagor had borrowed from the mortgagee a sum of Rs. 1,30,000 and for the repayment of the loan with interest, as therein mentioned, had giwen in zarbharna the rents and cesses of the mokwrari villages therein described. The villages are divided into groups, the distinguishing mark of each group being the date at which the mortgagee is to take possession. The possession of all the villages is to be re-delivered to the mortgagor on the 14th January 1903, it being calculated that by that date the amount due to the mortgagee for principal and interest will have been satisfied out of the rents of the several villages. The deed contains an elaborate schedule showing the details of this calculation. It also expressly precludes the mortgagor collecting any of the rents during the terms of the zarbharna. It also contains the following clause: If by mistake I" (the mortgagor) "or my heirs make any collection, then I or my heirs shall be liable to pay the amount collected with interest at the above rate ....Except in such a case for no other reason and on no other account, the zarbhar-nadar has and shall have any claim whatever against me or my heirs and representatives on the ground of realisation and non-realisation. If a claim is made, it is and shall be totally null and void.

(3.) ON the 13th January 1909, within six years from the expiration of the terms of the zarbharna, the respondents, who represent the mortgagee, instituted the present action. By their plaint they asked relief either (1) in accordance with Order XXXIV, Rule 4, of the Civil Procedure Code, on the footing of an existing mortgage of the villages described in the deed; or (2) on the footing of a personal liability on the part of the mortgagor. They claimed to realise what was due to them; in the first alternative, out of the mortgaged villages; and in the second, out of the estate of the mortgagor, who was then dead.