NARAYAN Vs. MAHADEO

JUDGEMENT

(1.) THE plaintiffs' suit on a mortgage, dated the 19th June 1912, has failed in both the lower Courts. Many pleas offered by the defendants, including the common and often reprehensible one that the ancestor of the defendants, in this instance, defendant 1's father, was a man of vicious habits, have been found against the defendants. The suit, however, was dismissed on the sole ground that amongst the property mortgaged were some 13 trees in the occupancy field No. 43/1. The Subordinate Judge held that the trees in question were immovable property for the purpose of registration, and following Fakira v. Ramkisan A.I.R. 1925 Nag. 277 and Nilkant v. Ghulya [1917] 13 N.L.R. 165, he was of opinion that the registration of the mortgage deed was invalid and, the personal remedy being barred by time, the suit was liable to dismissal.

(2.) THE plaintiffs appealed to the Court of the District Judge, Nagpur, who upheld the decision of the Subordinate Judge. His view was that registration of the trees was prohibited and that the mortgage, therefore, cannot operate in respect of any of the property included in the deed in suit. On this and connected findings, the learned District Judge dismissed the appeal and the plaintiffs have now filed the present second appeal in this Court.

(3.) IT has been urged on behalf of the plaintiff-appellants that there may be distinct titles in the land and in the trees; the former may belong to A and the latter to B. A tenant may acquire land from the landlord without acquiring property in the trees. Whether the trees formed part as such is, it has been urged, a matter for investigation and decision on questions of fact. In the present case, it is urged, the mortgage deed drew a clear distinction between the land and the trees, the land being specifically excluded from the mortgage and the trees included therein. Some attempt has been made to urge that the language of the deed used in connexion with the trees implies that the soil on which they stood was also mortgaged. I can find no ground to support this allegation on my reading of the mortgage deed. It has been admitted on behalf of the appellants that, in the ordinary event, there would be a question for investigation and decision as to whether the parties to the deed averred and intended that the trees and the land were capable of being held on separate titles, but it is urged that, in the circumstances of the present case, wherein the mortgagor explicitly excluded the land from the scope of the mortgage and equally explicitly included the trees therein, they are now estopped from avoiding any further investigation into the question of fact concerned being carried through.