Reuben, J.:— This is an appeal by Defendant no. 1. It arises out of a suit for the declaration of the zarpeshgi right of the plaintiffs in certain property, for the recovery of possession over it and for mesne profits.

The property originally belonged to Defendants 3 to 7, who executed a zarpeshgi in favour of Defendant no. 8 on 12th April, 1924. The Plaintiffs base their title on a deed of assignment Exhibit 3 in their favour executed by Defendant no. 8 on 3rd March, 1938, for a consideration of Rs. 10,000. The appellant challenges the passing of title under the assignment, on the ground that at the time of the assignment the zarpeshgi interest was attached in Money Suit no. 26 of 1935 brought by the father of the appellant against Defendant no. 8. The appellant claims the title as vested in himself by virtue of a civil court sale in the year 1940 in execution of the decree in suit no. 26 of 1935. The defence was rejected by the Courts below on the finding that the zarpeshgi interest was not effectively attached so as to prevent the passing of interest by the assignment, the ground being that the interest is immovable property and the attachment was made as of movable property.

Mr. Kailash Rai has urged three points:—

1. That the zarpeshgi interest is movable property;

2. That, even if it is immovable, the requirements of the law for the attachment of immovable property have been substantially complied with; and

3. That, under the assignment, no title, or at most an imperfect title, passed.

In the Civil Procedure Code there is no definition of “immovable property”, and “movable property” is defined in inclusive terms as including growing crops. Therefore, in the absence of anything repugnant in the Code, the meaning to be assigned to these terms must be ascertained with reference to the General Clauses Act, 1897, the relevant provisions of which are:

Section 3, clause (25)—

“Immovable property shall include land, benefits to arise cut of land, and things attached to the earth, or permanently fastened to anything attached to the earth;” and

Section 3, clause (34)—

“Movable property shall mean property of every description, except immovable property”.

These definitions divide all property into two distinct classes, immovable property as to which we are given only an inventory of things that it includes, and movable property, which is every form of property which is not immovable property. This definition of immovable property, even though it is not complete and exhaustive, makes it clear that immovable property is not merely land, that is to say something physical, but includes immaterial rights arising out of land. It is in this sense that the ownership of land is said to constitute immovable property, and it consists of the sum total of rights arising out of the land.

Now, under the law, it is permissible to the owner of land to part with his rights either in whole or in part. One way in which he may part with his rights in part is by mortgage, and section 53 of the Transfer of Property Act defines a mortgage as “the transfer of an interest in specific immovable property”. So the interest of a mortgagee is made up of some of the rights, the whole of which rights go to make up the immovable property. In the absence of any reason to the contrary we are justified in taking it that the interest of the mortgagee is the same in character as that of the owner of the property, that is to say it is immovable property. This is a view that has commended itself to several eminent judges [Maclean, C.J, in Paresnath Singh, Mukharji and King, JJ., in Jang Bahadur, Rankin, C.J, and Ghose, J. in Imperial Bank of India].

A contrary view was taken by Rampini, J. in the case of Paresnath Singh who, at page 18, observed that a mortgagee is “only the owner of an interest in immovable property, which is a different thing from immovable property”. Much reliance was placed by Mr. Kailash Rai on this remark and he urged that the other judges of the Full Bench did not take notice of the decision in Fadu Jhala referred to by Rampini, J. That, case, however, was concerned with the question whether a right of fishery is immovable property within the meaning of the Specific Relief Act, an Act which raised entirely different considerations. This is clear for instance from the judgment of Petheram, C.J in that case, where he concedes that a right of fishing is immovable property within the definition of the term in the General Clauses Act but points out that the whole of section 9 of the Specific Relief Act is repugnant to the idea that immovable property in that section includes an incorporeal right of this kind belonging to some one other than the owner of the land. This appears also from the judgment of O'Kinealy, J. which is particularly referred by Rampini, J. His Lordship observed that the Specific Relief Act “did not cover all kinds of property, movable and immovable, but only such as were capable of being taken possession of, and of which possession could be delivered.” The distinction drawn by His Lordship, therefore, between immovable property and an interest in immovable property is no authority for holding that an interest in immovable property cannot be itself immovable property. With due respect to Rampini, J., I would suggest that the difference, apart from special considerations arising out of the context of the Act under consideration, is one of degree and not of kind.

Mr. Kailash Rai has also relied on the case of Debendra Kumar, another case referred to by Rampini, J. but not by the other members of the Full Bench. In that case their Lordships, without discussing their reasons for it, held that a simple mortgagee's interest is not immovable property. The case is distinguishable, because here we are concerned with the interest of an usufructuary mortgagee and their Lordships, in coming to their finding stressed that they were dealing with a simple mortgage; but the reason which I have given above for holding a mortgagee's interest to be immovable property applies with equal force to a simple mortgage, and I prefer to follow the decision of the majority of the Full Bench in Paresnath Singha's case.

Another reason given in reported decisions for holding a mortgagee's interest to be immovable property is that it comes within the term ‘benefits to arise out of land’, occurring in the definition in the General Clauses Act, [Paresnath Singha's case, Jang Bahadur's case]. In view of what I have said above it is not necessary to rely on this ground, the correctness of which was challenged by Rampini, J.

[Paresnath Singha's case], whose opinion is supported by the remarks of Rankin, C.J and Ghose, J. [Imperial Bank of India].

Richardson, J. in Sakhiuddin, suggests another line of reasoning which supports my view that a mortgagee's interest is immovable property. As the Transfer of Property Act was originally enacted, an “actionable claim” included a debt secured by a mortgage, and under section 130 an actionable claim could only be transferred by an instrument in writing. Now, by an amendment of the year 1900, a debt secured by a mortgage is not an actionable claim. If it was movable property, the effect of the change would be that it could be transferred orally. His Lordship observed:—

“…………………it can hardly be supposed that debts secured by mortgages of immovable property were excluded from the definition of actionable claims in order, that they might pass by word of mouth without any writing. The inference would seem to be that the legislature regarded such debts as immovable property within the definition in section 3(25) of the General Clauses Act of 1897.”

Mr. Kailash Rai has also referred to a passage in Sri Raja Papamma Rao where their Lordships of the Judicial Committee observed that in a simple mortgage “there is no transfer of ownership”. This remark has to be understood in the light of the facts of that case, which have nothing whatever in common with the case before us. There, a suit brought by a simple mortgagee to enforce his mortgage had resulted in a decree putting him in possession of the property mortgaged. Then, a suit was brought by the successors-in-interest of the mortgagor for the restitution of the property on the plea that the mortgage debt had been satisfied. The question which arose was the nature of the possession which was given to the mortgagee under the earlier decree, whether it was in the nature of a foreclosure preventing the mortgagor from suing to recover possession. This decision was therefore rightly distinguished in Paresnath Singha's case.

Upon the above grounds, I would decide the first point against the appellant and would hold that the interest in question was immovable property.

This brings me to the second point. The attachment was one under Order XXXVIII of the Civil Procedure Code Rule 7 of this Order provides that subject to express provision to the contrary, attachment shall be made in the manner provided for the attachment of the property in execution of a decree. In this case, therefore, attachment should have been made as provided in Order XXI, rule 54. The order of attachment in the present case was issued in Form 5 of Appendix F to the Code. Mr. Kailash Rai urges that the Courts below erred in holding that the attachment was bad because this form was used instead of Form 24 of Appendix E, and he argues that the service of this defective warrant was in fact sufficient to comply with the requirements of Order XXI, rule 54.

Turning to Order XXI, rule 54, the first essential of a legal attachment is

“an order prohibiting the judgment-debtor from transferring or charging the property in any way, and nil persons from faking any benefit from such transfer or charge”.

This is exactly what the Form 24 of Appendix E is, an order addressed to the judgment-debtor directing that he is

“hereby prohibited and restrained until the further order of this Court, from transferring or charging the property specified in the schedule hereunto annexed, by sale, gift, or otherwise, and that all persons be, and that they are, hereby prohibited from receiving the same by purchase, gift or otherwise.”

The order that was published, however, was in Form 5, Appendix F, that is to say a direction to the Bailiff of the Court to call on the defendant to furnish security to produce certain property or the value thereof sufficient to satisfy any decree that might be passed against him, or to appear and show cause why he should not furnish such security; and further to attach the said property and keep the same under safe and secure custody until the further order of the Court. It was this order that, according to the evidence in the case, was published on the suit land by beat of drum. Obviously, the first requisite of Order 21, rule 54 was not complied with, and there was no valid attachment.

For his third contention, Mr. Kailash Rai relies on the fact that, at the time of the assignment, the zarpeshgi deed had been attached, and was in the custody of the Court. He contends that the zarpeshgi deed was not merely the instrument by which the zarpeshgi interest was created but it was, also “the custodian of the right”, and therefore in the absence of the document the zarpeshgidar could not transfer the interest. He is unable to cite any authority for this novel proposition. He seeks to support his contention by a reference to the fact that there is a prohibition in law against proving the zarpeshgi interest except by a production of the original zarpeshgi deed. This is merely a rule of evidence embodied in section 91 of the Evidence Act, and proceeds on the principle that, where an agreement has been reduced to writing, the Court will insist on the production of this document as being the best proof of the agreement, unless circumstances exist making it necessary or reasonable to accept secondary evidence. This does not mean that the interests arising out of the agreement somehow become identified with the instrument itself, and it is only as evidence of the agreement that section 91 of the Evidence Act deals with it. If the interest itself was vested in the zarpeshgidar and it was a transferable interest, neither of which fact is denied, no impediment to his transferring that interest can arise out of his not having in his possession the instrument by which the interest was created;

On the above grounds I would decide all the three points against the appellant, and dismiss the appeal with costs.

Mukharji, J.:— I agree.

K.D

Appeal dismissed.