Annada Hait v. Khudiram Hait And Others

Harington, J.:— S.A No. 2004 of 1910. This is an appeal by the defendant in a suit which the plaintiff brought for possession of certain disputed property on redeeming the usufructuary mortgage thereon in favour of the defendant in possession.

2. The learned Judge in the Court below found that the mortgage was valid in law and gave the plaintiff the relief he claimed.

3. It is now argued in appeal to this Court that the mortgage was void under Section 12 of the Ben. Ten. Act. It was in fact a verbal mortgage.

4. There is a dispute between the parties as to whether the subject-matter of the mortgage is a property of the nature which would come within the provisions of that section. The appellant's contention is that the mortgage being void the plaintiff cannot succeed in his action, because there is no mortgage in law which he is entitled to redeem. Therefore he argues that the suit ought to have been dismissed.

5. Now the difficulty appears to me to be this. If the appellant's argument is sound then the mortgage transaction gave him no right to the possession of the land. He had then no title at all, because the title by purchase which he set up has been expressly negatived by the learned Judge in the lower appellate Court—the plaintiff succeeded in proving a title paramount to the land. The first conveyance was a conveyance of an eight anna share by the plaintiff's mother in favour of a man named Nogendra. Subsequently there was a conveyance by Nogendra to a man named Baikuntha which was admittedly a benami transaction made according to the plaintiff in his favour. The defendant, on the other hand, says Baikuntha was his benamidar and he asserted his right to the possession of the land which he had got on the ground that he was the person for whom the purchase by Baikuntha was made. But that matter the learned Judge has found against him. He found that he did not purchase the land through Baikuntha. Therefore the title he set up to justify his possession failed. Then comas the story of the verbal usufructuary mortgage made by the plaintiff's mother in favour of the defendant which the Judge has found to be a true story and on the basis of which he gave the plaintiff possession on payment of the money advanced on the mortgage. In my view, as intimated at the beginning of the judgment, the appellant has put himself into this difficulty. He claims to be in possession of the land under a purchase, but ??? to establish that purchase. He must be taken as having no title under the purchase through Baikuntha. He then says that the usufructuary mortgage under which the plaintiff put him in possession is one which is void in point of law. Therefore he is not entitled to the land on his own showing under the arrangement under which the plaintiff says he holds possession. So that, if his argument is well founded, the plaintiff by virtue of his title would be entitled to possession as against the defendant. The argument that has been addressed to us is that if the plaintiff is given possession in this suit, it would be substantially altering the character of the suit. I do not agree with this. It appears to me that a suit for possession on; redeeming a usufructuary mortgage is in substance a suit for possession of the land. If the plaintiff establishes his title and the only answer the defendant has is that the mortgage is void in point of law, still nevertheless the plaintiff would be entitled to get the land, because the defendant on his own showing has no title whatever to detain possession of the land. For this reason, even if his argument is well founded, the judgment for possession will stand.

6. The result is this appeal is dismissed with costs.

S.A No. 2055 of 1910.

7. My judgment in Second Appeal No. 2004 of 1910 will also govern this appeal, which is also dismissed with costs.

JUDGMENT

8. Both the appeals are dismissed with costs.

V.B/R.K

9. Appeals dismissed.