JAMNA DAS Vs. RAMAUTAR PANDE

JUDGEMENT

(1.) THIS appeal arises out of a suit to enforce a mortgage and an application by the decree-holder for a decree under Section 90 of the Transfer of Property Act. On the 6 of June, 1893, a mortgage was executed by Musammat Lakhpati Kuar in favour of Jamna Das. The money was recoverable in 10 years. The mortgage deed contains sundry provisions providing for earlier realisation of the money secured in certain events., The property mortgaged was partly zamindari property and partly mortgagee rights in zamindari: property. The principal amount was the sum of Rs. 40,000. On the 24 of November 1896, the mortgagor sold the entire mortgaged property to the defendant, Pandit Ramautar Pande, for the sum of Rs. 44,000 out of which Rs. 4,000 only passed and the balance was left in the hands of Pandit Ramautar Pailde for payment of the mortgage-money due to Jamna Das. On the 9 of February 1900, Jamna Das sued for sale of the mortgaged property and for a personal decree in the event of the mortgaged property proving insufficient. Musammat Lakhpati Kuar and Pandit Ramautar Pande were both made defendants. Several defences were raised including the defence that the suit was premature. The case went to the High Court and the "Court held that under the terms of Clause 12 of the mortgage deed the plaintiff's cause of action arose on the 24 of November 1896. We particularly mention this matter as it has an important bearing on the objections filed on behalf of Badri Prasad, the representative of Musammat Lakhpati Kuar. The result of the suit was a decree against all the defendants for the Bale of the zamindari property. The mortgagee rights were not included in the decree for sale. The Court felt itself bound by the decision in Mata Din Kasodhan V/s. Kazim Husain (1891) I.L.R. 13 All. 432. For this reason it reluctantly excluded from the decree for sale so much of the mortgaged property as was represented by the mortgagee rights. In execution of the decree the zamindari property was put up for sale and realised the sum of Rs. 24,547-7. THIS left, of course, a substantial balance due to the mortgagee, and he accordingly applied for a personal decree against Pandit Ramautar Pande and the representative of Musammat Lakhpati Kuar. In the application the decree-holder says after reciting the facts: "As now remains no property which might be sale able under the High Court decree, dated 29 November 1904, according to the provisions of the Transfer of Property Act, the applicant prays that a decree under Section 90 of the Transfer of Property Act may be passed in his favour so that by executing that decree the applicant may recover, with costs and future interest, the amount due to him from the mortgagee right of Musammat Lakhpati Kuar and the property left by her and also from the person and other property of Pandit Ramautar Pande, who, notwithstanding his knowledge of the mortgage made to the applicant, and his express contract as to the payment of the amount of the mortgage due to the applicant, got the mottgaged zamindari property transferred to himself and for several years enjoyed the considerable profits accruing from the mortgaged zamindari property, without paying the amount due to the applicant." In spite of its prolixity of form this is Simply an application under Section 90 of the Transfer of Property Act, which provides that "when the next proceeds of any such sale are insufficient to pay the amount due for the time being on the mortgage, if the balance is legally recoverable from the defendant, otherwise than out of the property sold, the court may pass a decree for such sum." The Court has held that the balance is not "legally recoverable from the defendant, Pandit Ramautar Pande, otherwise than out of the property sold." A decree has been made against the representative of Musammat Lakhpati Kuar. The decree-holder has appealed against so much of the order of the court below as refuses a personal decree against Pandit Ramautar Pande, and objections have been filed on behalf of the representative of Musammat Lakhpati Kuar. It no doubt appears inequitable that Pandit Ramautar Pande should have taken a transfer of the mortgaged property for Rs. 44,000 on condition of paying Rs. 40,000 in satisfaction of the mortgage, and that he should now be permitted to retain a large part of the mortgaged property without discharging his obligation. THIS is however the unfortunate result of the decision we have referred to. Happily the ruling in Mata Din Kasodhan v. Kazim Husain is no longer acted upon by this Court, see the Full Bench ruling in Ram Shankar Lal V/s. Ganesh Prasad (1907) I.L.R. 29 All. 385; The simple question is, can it be said that the balance of the mortgage debt is legally recoverable from Pandit Ramautar Pande otherwise than out of the property sold? The mortgagee rights unfortunately cannot be sold because the decree of the High Court, dated 29 November 1904, was un appealed from and has become final. If the decree- holder is not entitled to a personal decree against Pandit Ramautar Pande, he is without a further remedy in the present suit. It is contended that by retaining in his hands part of the purchase money and expressly or impliedly agreeing to pay the amount to Jamna Das, he became personally liable. In our opinion this contention is not sound. Jamna Das was no party to the contract between Musammat Lakhpafti Kuar and Pandit Ramautar Pande. No Indian or English case has been cited to us in which it has been ever held or suggested that the transferee of the equity of redemption in mortgaged property becomes personally liable to the mortgagee. Secs.1205 and 1206 of Pomeroy's "Equity Jurisprudence as administered in the United States of America" have been cited to us. We think it unnecessary to discuss the opinion of the learned author. No English authority as cited for any of the propositions laid down there.

(2.) THE objections filed on behalf of the representative of Musammat Lakhpati Kuar are to the effect that the application for personal decree is time-barred. We have already mentioned that the High Court in this very suit held that the cause of action arose to the plaintiff on 24 November 1896. This decision on the construction of the mortgage deed is binding on us. THE suit in which the decision was given was a suit under the provisions of the Transfer of Property Act, and we must take it that the suit was not only for the sale of the mortgaged property but also, in certain events, for decree trader Section 90. THE plaint itself contained a prayer for such relief. We think we cannot go behind the decision of the High Court. We accordingly disallow the objections filed on behalf of the representative of Mueammat Lakbpati Kuar with costs. THEre only remains the question of the costs of the respondent Pandit Ramautar Pande. In the court below the costs of this respondent were thrown on the decree-holder. We think that Pandit Ramautar Pande should bear his own costs in the court below and in this Court. We do not desire to express any strong opinion on the conduct of Ramautar Pande in not keeping his bargain with his vendor, particularly as it is suggested by the learned advocate that he may have some equity against his vendor. THE fact, however, remains that he became transferee of the equity of redemption in the mortgaged property stipulating that he would pay the amount of the mortgage to Jamna Das. He did not do so, and in the events which have happened he is holding a substantial portion of the mortgaged property without even discharging the debts due thereon. We dismiss the appeal and direct that the appellant and Pandit Ramautar Pande do bear their own costs in this Court and in the court below. THE other respondent on whose behalf the objections were filed must pay the decree- holder's costs.