MAHARAJ SINGH Vs. LALTA PRASAD

JUDGEMENT

(1.) This is the plaintiffs appeal in the suit out of which the connected appeals No. 364 of 1915, No. 16 of 1916 and No. 105 of 1916 decided by us yesterday arose, and for the history of the case we refer to the judgments in the connected appeals. The first point raised by the appellants is that there has been a reduction in the Government revenue from 294 Fasli to 1311 Fasli, and that the plaintiffs ought to have been allowed credit for the difference between the revenue at the date of the mortgages and the reduced rate in pursuance of the terms of the mortgage deed of 1867. The answer to this contention is that during this period Suleman Gardner was alive. It was Suleman Gardner who was entitled to the malikana allowance of Rs. 2,070 per annum and Suleman Gardner had been making fresh mortgages and obtaining fresh advances. We think that it is quite clear that the plaintiff is not entitled to any credit by reason of reduction (if such there was) in the Government revenue during the lifetime of Suleman Gardner.

(2.) The next contention raised by the appellants is that on the true construction of the mortgage-deed the mortgagee was bound to account for any enhancement of rent which took place after the making of the mortgage and that the mortgagors would be entitled to credit for any enhancement of rents which were received after the making of the mortgage. We think that this contention is without force. it was clearly the intention of the parties that the mortgagees should take the profits of the property in lieu of interest after paying the malikana allowance and Government revenue. We think it would be impossible for the mortgagors to contend that if for some reason the rents fell below what they were in 1867, the mortgagees would be entitled to increase the indebtedness on the property by reason of such abatement and if they could not, it would be most unfair that the mortgagees should suffer from an abatement and not profit by an enhancement, It may be said that enhancement of Government revenue was almost certain to be followed by an enhancement of the tenants rents and that it is inequitable that the mortgagees should profit by the enhancement of the rent and at the same time profit by being liable to pay a reduced malikana allowance. The answer to this contention is that the mortgage was for the short period of six years. No great enhancement either of revenue or tenants rents was likely to take plane in that short period, and at any time after the expiration of six years the mortgagors were entitled to redeem. The real reason why in the present case the property was not long ago redeemed was that Suleman Gardner either for himself or for himself and family was getting large fresh advances from time to time from the mortgagees, We hold on the construction of the mortgage-deed that the mortgagees were entitled to the benefit of any enhancement of the tenants rents and that they are not liable to account for such enhancement.

(3.) Exception was taken to the finding of the Court below as to the loss which the defendants suffered by reason of the plaintiffs having attempted to take possession of the property and collect the rents. We think that the plaintiffs were altogether wrong in taking the law into their own hands and attempting to take possession of the property without first getting, a legal title to do so. We see no reason to differ from the finding of the Court below on this point or as to the amount of the damages sustained by the mortgagees.