Jag Sahu v. Mussammant Ram Sakhi Kuer

Coutts, J.:— This is an appeal against a decision of the District Judge of Saran dismissing an appeal against an order of the Subordinate Judge of Saran partially decreeing a suit which was brought on a zarpeshgi deed and a simple mortgage bond. The so-called zarpeshgi deed is dated the 21st of September 1905, and was for a sum of Rs. 1,850. The simple mortgage bond is dated the 7th of June, 1911, and was of a sum of Rs. 400 advanced on the security of the same property as was mortgaged by the previous deed of the 21st of September, 1905. The deeds were both executed by one Kanchan Singh, the husband of the defendant No. 1, Musammat Ram Sakhi Kuer, in favour of the plaintiff No. 1, Jag Sah, and Ram Sahai Sah, ancestor of the other plaintiffs. The defendants Nos. 2, 3 and 4 purchased the mortgaged property from the defendant No. 1 on the 7th of November, 1914, the arrangement being that out of the consideration money the sum of Rs. 652 was to be kept for payment of the mortgage debt due on the bond of the 7th of June, 1911, and the sum of Rs. 1,850 for the payment of the debt due on the deed of the 21st September, 1905. The defendants' case was that at the time they purchased the mortgaged property they tendered the sum of Rs. 652 to the plaintiff No. 1 in payment of the mortgage debt, but the plaintiff refused to accept the money and claimed a right of pre-emption in the property. The defendants then waited for a year until a suit for pre-emption would be barred and deposited the amount in Court. On these allegations the defendants contended that the plaintiffs' mortgage debt had been satisfied by the amount Rs. 652 which was deposited by them and they further contended that as the plaintiffs' were in possession of the property mortgaged by the deed of the 21st of September, 1905, they were not entitled to sue for sale of the property as they had done in this suit.

In the Court of first instance it was decided that the plaintiffs, on the allegations of the defendants, which were accepted, could claim no interest beyond what was included in the Rs. 652; and with regard to the claim to sell the property to satisfy the debt of Rs. 1,850 a curious order was passed by which the suit was decreed in the plaintiffs' favour “only so far as, if; he has been really dispossessed he can take possession”. What this may mean I do not know. On appeal to the District Judge the decision of the first Court in regard to interest was upheld and in regard to the claim oil the deed of the 21st of September, 1905, for sale of the mortgaged property, the learned District Judge held that as the plaintiffs had not been dispossessed they were not entitled to sue for sale of the mortgaged property. In the result the whole suit was dismissed. The plaintiffs have appealed to this Court.

Three points are urged before us. The first is that the tender of Rs. 652 was less than the total amount due and that consequently it was not a valid tender and the plaintiffs were not bound to accept it. The second point urged is that assuming that a valid tender had been made still the defendants must establish that the amount tendered had been kept always available for payment and they not having established this the tender was not a valid tender. The third point urged is that the so-called zarpeshgi deed of the 21st of September, 1905, was not a pure usufructuary mortgage inasmuch as a, due date for payment had been fixed on the bond; it was an anomalous mortgage and that in such a case the plaintiffs were entitled to sue for sale of the mortgaged property.

With regard to the first of these points it was never suggested either in the Court of first instance or before the lower appellate Court that the sum tendered, Rs. 652, was insufficient at the time of tender and it is impossible at this stage without going into evidence to say whether the amount was sufficient or not. This is a second appeal and the question of sufficiency or insufficiency cannot be gone into at this stage. With regard to the second point urged, here again the contention must fail because it was never suggested that the money was not kept available by the defendants although it is necessary that a mortgagor should after tender keep the money ready for payment. It is a matter which involves a consideration of evidence whether in fact the money was kept ready or not and both the Courts below having assumed that all the provisions of the law in respect of the tender had been complied with, we cannot allow this point to be taken at this stage. The third point urged is that a due date having been fixed for payment of the mortgage money under the deed of the 21st of September, 1905, the mortgage was not a pure usufructuary mortgage and, therefore, the plaintiffs were entitled to sell immediately after the due date was passed even though they still remained in possession of the property. In support of this proposition the decisions in Pargan Pandey v. Mahtam Mahto, Pitambar Purkait v. Madhu Sudan Mandal and Dattambhat Rambhat Joshi v. Krishnabhat bin Govindbhat Joshi are relied on and it seems to me that this is the correct view of the law. The question was very fully discussed in Pitambar Purkait v. Madhu Sudan Mandal in which the mortgage was one in exactly the same terms as the mortgage in the case with which we are at present concerned; and in that case the learned Judges said “it is well settled that when an instrument of mortgage gives a right to possession and also contains a covenant to pay, thus presenting a combination of a usufructuary and a simple mortgage, the two rights are independent and the mortgagee may sue for sale although he may have given up possession, and the right accrues immediately after the due date is parsed”. The same view was taken in the other cases to which I have already referred and, as I have already said, this in my opinion is the correct view of the law.

In the result then I would modify the decree of the lower appellate Court. The parties are agreed that the sum due is Rs. 1,675. I would accordingly direct that the plaintiffs be allowed to sell the mortgaged property for this sum, the defendants being allowed six months' time to pay up the amount. Cost's in proportion to the success of the parties.

Ross, J.:— I agree.

Degree modified.