MOHAMMAD SHAKUR Vs. GOPI

JUDGEMENT

(1.) THIS was a suit on foot of a mortgage, dated the 17thof March 1902, for a sum of Rs. 150 payable by instalments of Rs. 14 a year, the last instalment being one of Rs. 10. The plaintiff s case was that the instalments had been paid up to the year 1909. He has brought the present suit to recover the amount which has remained un-paid. The document also contains a covenant that in the event of non-payment the mortgagee was entitled to recover possession of a certain cultivatory holding in which the mortgagors had rights of occupancy. THIS covenant in the mortgage-deed is void in law. But if the money was really advanced to the defendants on the conditions set out in the deed, namely, that it was payable by instalments specified which the defendants covenanted to pay, the suit for money on such a covenant was clearly maintainable. The Court below has relied upon a decision of this Court in the case of Sita Ham Tiwari v. Sukhdeo Kunbi 6 A.L.J. 88 (Notes). In that ease the mortgage was a usufructuary mortgage. In the case of such mortgage the mortgagee is not entitled to claim the money advanced from the mortgagor personally. His only right is to remain in possession of the property so long as the mortgage is not discharged. There is no personal covenant forpayment of the money as a debt, except under the terms of a special agreement to that effect. That case is, therefore, clearly distinguishable from the present one. In the present case there is an independent and express covenant which, if the plaintiff s case were true, had been observed up to 1909. The present suit has been dismissed by the Courts below on the ruling which I have already mentioned. That ruling has no application. The Courts below have not tried the other issues arising in the case, for instance whether or not the mortgage-bond was duly executed and whether or not the instalments were paid up to 1909. I agree with the Court below in holding that the document in so far as it involves a mortgage of an occupancy-holding is invalid, but that in so far as it contains a personal covenant on the part of the debtors to pay the amount it is enforcible at law. As the other points were not tried by the Courts below, I have no alternative but to set aside the decrees of the Courts below and to remand the case back to the Court for trial of other points arising in the case. I, therefore, allow this appeal, set aside the decrees of the Courts below and remand the case through the lower Appellate Court to the Court of first instance for trial on the merits. Costs here and hitherto will abide the event.