ABDUL GANI Vs. SHEIKH NIZAM

JUDGEMENT

(1.) THE only point for decision in this appeal is as to the application of the rule of Damdupat. The suit out of which this appeal arises was for foreclosure of a mortgage dated the 10th June 1912. The original mortgagor sand mortgagees were Mahomedans; but after the date of the mortgage parts of the mortgaged property were sold by the mortgagors to two sets of Hindus and a part of it was sold at a Court sale to another set of Hindus. These three sets of Hindus and the Mahomedan mortgagors or their heirs are the defendants. The mortgage was for the principal sum of Rs. 2,500 and the claim with interest at the stipulated rate is for Rs. 9,551-6-0.

(2.) THE Hindu defendants pleaded that the plaintiff could not recover more than Rs. 5,000, the Damdupat. The lower Court has held that the rule comes into force as soon as the debtor by assignment becomes a Hindu, and that as this happened on the 17th January 1917 before the amount of interest had become equal to the principal the plaintiff was entitled to no more than Rs. 5,000.

(3.) IN my opinion the rule to be applicable must have begun to apply at the time the original contract was made. It can do so only if the original debtor is a Hindu. In such case the creditor is aware of its applicability and he accepts its consequences. Once it has begun to be applicable it continues to be applicable to a Hindu assignee of the debtor for the assignment does not put the creditor in a worse position, than he expected to be in, under his contract. It stops being applicable when the assignee is a non-Hindu; Ali Saheb v. Shabji (1897) 21 Bom. 85, for the non-Hindu assignee who takes the assignment with the knowledge that the rule-is not meant for the benefit of other than Hindu debtors cannot be said to be detrimentally affected by the stoppage. When it has not become applicable at the time of the original contract, as here, it cannot for the first time be made applicable as the result of an assignment to a Hindu. The result of allowing this would be to defeat the rights and expectations of the creditor under the original contract,