BIBI AZIRAN Vs. BIBI KASIMAN

JUDGEMENT

(1.) This is an appeal on behalf of the defendants in an action for recovery of money due under a usufructuary mortgage executed on the 12 February 1895. The ijara lease which was in the nature of a usufructuary mortgage was to run for a term of seven years from 1303 to 1309; it covered one-half of the property and the Government Revenue was payable, half by the mortgagor and half by the mortgagee. There was a default in the payment of Government Revenue in 1906, as a result of which the property was sold on the 6 June of that year. The plaintiffs alleged in their plaint that they were entitled under the terms of the ijara contract to recover the mortgage money with interest from the surplus sale-proceed, and if the latter proved insufficient, to recover the balance from the first defendant personally. They further alleged that the sale had been brought about by the default in payment of the Government Revenue of the mortgagors and that the latter had managed to purchase the property benami in the name of Hanuman Sahu. This part of the case, however, they abandoned in the Court of first instance, upon the allegation that it would be very difficult to prove the alleged benami. The defendants in their written statement contended that the interpretation put upon the covenant for repayment of the mortgage-money in the event of sale of the mortgaged premises and consequent dispossession of the mortgagees therefrom, was erroneous, and that as, in the present instance, the Sale had been occasioned by the default of the mortgagees, they were not entitled to recover the money. Before the Subordinate Judge, reliance was placed on behalf of the plaintiffs, apparently upon the provisions of Section 73 of the Transfer of Property Act, and two issues were raised as to whether the plaintiffs were estopped from bringing the suit and as to the party through whose default the sale had taken place. The Subordinate Judge held that the default was on the part of the mortgagors because during the year 1905-6, they had paid less than their proportionate share of the Government Revenue. He declined, however, to examine the whole accounts and to determine the validity of the contention of the mortgagors that they had made excess payments in previous years and that if the accounts were taken for the entire period between the date of the creation of the mortgage and the time of the Revenue Sale, it would be established that there was no default on their part. In this view of the matter, he made a decree in favour of the plaintiffs.

(2.) The defendants have now appealed to this Court, and on their behalf it has been contended that the Subordinate Judge has taken a very restricted view of the case and that the question of default ought to have been determined either with reference to the last instalment for default of payment of which the sale took place or on the basis of the accounts extending over the entire period between the mortgage and the Revenue Sale. It has been argued, on the other hand, by the respondents that the question of default ought to have been determined with reference to the twelve months only which preceded the Revenue Sale. In our opinion, the view put forward on behalf of the respondents is not well-founded, and, that if it were necessary to go into the question of default, with reference to the provisions of Section 73 of the Transfer of Property Act, the accounts for the entire period between the creation of the mortgage and the date of the Revenue Sale must be examined. It is needless, however, to examine the whole accounts to determine the question of default in the present litigation. The learned Vakil for the respondents has contended, and in our opinion rightly, that upon the terms of the ijara contract which regulates the rights and liabilities of the parties, the plaintiffs are entitled to succeed. The clause of the ijara which bears upon this question, is in these terms: "If the property be, may God forbid it, sold by auction on account of any Government demands or for any other cause and goes out of possession of the ijaradars, they, the said ijaradars, shall be competent to realize the entire pesghi money with interest at rupee one per cent per mensem from the surplus sale proceeds and from the person and other properties of me, the declarant." There can be no question that the terms of this covenant are very comprehensive and completely cover the contingency which has happened. The learned Vakil for the appellant has, however, strenuously contended that the effect of this covenant is precisely the same as that of Section 73 of the Transfer of Property Act, and that the mortgagors are not entitled to the benefit of the covenant if it is proved that the sale took place by reason of their default. He has invited our attention to the covenant for payment of Government Revenue in an earlier part of the deed, and suggested that if the two clauses were, as, indeed they ought to be, read together, the only reasonable construction of the second Clause would be that, if there was default in payment of the Government Revenue in contravention of the earlier clause, the benefit of the second Clause could be lost to the mortgagee. We are unable to adopt this contention as well-founded. No doubt, we are bound to give effect to the intention of the parties to the contract, but that intention must be gathered from the language used in the document, and not from any extraneous considerations. In our opinion, if we were to accede to the contention of the appellant, we would do violence to the language of the particular covenant, because in essence we are invited by the learned Vakil for the appellant to read into that particular covenant the words "for any reason other than your default." His argument in substance is that the effect of the clause is the same as if it had been in the following terms: "if the ijara property be sold by auction on account of any Government demands or for any cause other than your default, and goes out of the possession of the ijardars, they shall be competent to realize the entire peshgi money." In answer to this argument, we need only observe that if this was what was intended by the parties, the language of the document ought to have appropriately expressed that view. We must hold, therefore, that under the terms of this document the plaintiffs are entitled to succeed. The result is that the decree made by the Subordinate Judge must be affirmed and this appeal dismissed.

(3.) The learned Vakil for the appellants has finally suggested that the effect of immediate execution of the decree may embarrass his clients. He explains that, according to his case, the property has been sold by reason of the default of the mortgagees, that his client has suffered considerable damage by reason of the Revenue Sale, that it is open to him to bring a suit for damages against the mortgagees for the loss suffered by reason of their default, and that if the decree is allowed to be immediately executed, he would be considerably handicapped in that litigation. In these circumstances, he prays, and, in our opinion, not unreasonably, that a clause should be inserted in the decree to the effect that execution is to be delayed for a period of three months from this date. This will accordingly be done.