MAHARAJA RAM NARAYAN SINGH Vs. ADHINDRA NATH MUKHURJI

JUDGEMENT

(1.) This is an appeal from an order of the High Court at Calcutta, dated the 30th August, 1911, which set aside a preliminary decree of the Subordinate Judge of Hazaribagh, dated the 30th June, 1910, in a suit brought upon a mortgage, and remanded the case to the Court of the Subordinate Judge to be dealt with in accordance with the directions contained in the judgment of the High Court. The respondents, who are the plaintiffs, have not appeared.

(2.) The deed upon which the suit was brought was made on the 14th April, 1896, by Maharaja Nam Narayan Singh in favour of Rai Babu Jadu Nath Mukhurji, a Government Pleader, who had been employed as a pleader by the Maharaja. The consideration was Rs. 1,30,000 which were advanced by Jadu Nath Mukhurji to Maharaja Nam Narayan Singh. The principal moneys, together with interest, at the rate of 10 annas per centum per mensem were to be repaid as provided by the deed, by and out of the rents and cesses of certain Mokurari villages of Maharaja Nam Narayan Singh, which were mortgaged with possession to Jadu Nath Mukhurji. A schedule to the deed shows how the repayment with interest was to be effected, and that on the determination, on the 14th January, 1903, of the period for which the mortgage was granted it was contemplated that the debt with interest would be satisfied, and a balance of Rs. 230-11-3 would be payable to the Maharaja by Jadu Nath Mukhurji. The total period for which the mortgage was granted was from the Samvat year 1953 to the Samvat year 1959, that is, from A.D. 1896 to the 14th January, 1903, and the times when possession of the different Mokurari villages was to be given to Jadu Nath Mukhurji were specified.

(3.) Having regard to the claim which has been made in this suit, the following extracts from the deed appear to their Lordships to be of importance :- It is desired that the said pleader Zarbharnadar should realise in full his dues, principal with interest, by remaining in possession of each of the said properties during the said years and by collecting the rents with cesses thereof. The details of the time when and the manner in which the principal and interest will be realised by the said pleader Zarbharnadar are given at the foot of this deed. The specifications of the villages with Jummabandis, pergunnahs, stations, sub- registry, district registry and zillahs wherein the said villages lie are given herein below. The said pleader Zarbharnadar should realise year after year from the Elakadars and tenants mentioned in this deed in accordance with the above specifications. If any Elakadars or tenants mentioned in this deed put off paying the rents, &c., then it is and will be in the power of the said pleader Zarbharnadar to realise the same with interest, damages, and costs by instituting suits in Court in his own name as Zarbharnadar plaintiff, with prayer for ejectment or in any other proper way. In case of ejectment, the said pleader Zarbharnadar will realise the Zarbharna money from the Kham Tehsil or from Thikadsr of such village, and amount of excess jumma resulting from the Kham jamma or Thikadari jummma in respect of the resumed villages over the jumma mentioned in the bond, whatever it may be, shall be paid on taking receipt by the said Zarbharnadar or his heirs to me the executant, or my heirs, year after year. I, the executant, will give the thicca pottah of the resumed villages. The Zarbharnadar shall have no right to grant the thioca pottah of such villages. If, for any reason, the jumma of any village as mentioned in the bond decreases, the said Zarbharnadar shall be entitled to get from me, the executant, the amount of decrease with interest at the above- mentioned rate. After the expiry of the term of the Zarbharna, I, the executant, shall have right to take possession of the resumed villages as well as of the other villages mentioned in this bond on account of the expiry of the term and redemption of mortgage, and the said pleader Zarbhafnadar shall have no right whatever to the same. During the term of the Zarbharna, I, the executant, or my heirs and representatives, shall on no account collect the rents with cesses of the Zarbharna properties mentioned in this bond. If by mistake, I, the executant, 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 to the said pleader Zarbharnadar. Except in such a case for no other reason and on no other account, the Zarbharnadar has and shall have any claim whatever against me, the executant, 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. The said pleader Zarbharnadar shall not be in any way liable for the Government revenue, Boad and Public Works cesses or any other public demand. These things shall concern me, the executant. The sum of Rs. 230:11: 3, the excess amount payable by the Zarbharnadar to me, the executant, in 1959, as stated in the account mentioned in this deed, shall be paid to me, the executant, on taking receipt; by the said Zarbharnadar in Pous of the said year. In case of default on the due date aforesaid, interest at the above rate up to the date of realisation shall be paid on the excess amount by the Zarbharnadar.