1. This is a defendants' appeal in a suit for ejectment from two houses and for recovery of Rs. 274-1-0. The houses belonged to the defendants but the plaintiff claimed to be a rehandar in respect of them by virtue of a registered instrument of mortgage dated 9th May 1928. The plaintiff's case is that he was not given possession of the houses on the understanding that the defendants-mortgagors will hold and occupy them as tenants of the mortgagee (the plaintiff) on payment of a monthly rent of Rs. 2. Along with the deed of mortgage this agreement was arrived at between the parties. In pursuance of this agreement the defendants executed a kabuliat embodying the aforesaid terms, The usufructuary mortgage was for a term of five years from the month of Asarh 1335 to the month of Jeth 1340 Fasli, while the kabuliat acknowledging the tenancy was for a term of 4 years from the month of Asar 1335 to the month of the Jeth 1339 Fasli. On expiry of the term of the tenancy, the plaintiff wanted to enter into sir possession of the houses, But, as it is alleged by the plaintiff, the defendants made a request to Baba Rambhajan Singh, one of the ancestors of the plaintiff, to allow them to remain in the house on payment of an enhanced rent of Rs. 5 per month. This request was agreed to and the defendants occupied the said houses from the month of Asarh 1339, Fasli on the fixed rent of Rs. 6 per mensem and had been paying the same up to the month of Bhado 1316. The defendants were called upon by the plaintiff to execute a fresh kabuliat, but they raised objection on the ground that they would be put to unnecessary expense. The defendants in contravention of the agreement having failed to pay the agreed rent, from the month of Asin 1341 Fasli up to the month of Jeth 1349, in spite of repeated demands, the plaintiff served them with a notice to quit, calling upon them to give vacant possession of the houses to the plaintiff from the 1st of Asarh 1349, Fasli. The plaintiff claimed that the alleged tenancy has terminated since then, and he is entitled to possession. Besides, he has claimed for recovery of the aforesaid sum in lieu of arrear of rents due with interest at the rate of Rs. 1/9/0 percent, per month. The defendants resisted the suit impugning the real character of the rehan which they claimed was a farzi transaction. They repudiated the relationship of landlord and tenant and challenged maintainability of the suit. In paragraph 18 of the written statement it was stated:

“That these defendants' tenancy is not of monthly character, rather these defendants all along had and have title to the said house as absolute owners, and occupancy light therein. The plaintiff neither ever had any connection whatsoever therewith except as rehandar, nor was there any reason for it.”

2. Both the Courts below have come to a finding that the rehan is not farzi, that the plaintiff was entitled to possession of the houses on ejecting the defendants and to recover rent at the rate of Rs. 2 per month without any interest. The defendants were given one month's time to vacate the house. Hence this second appeal.

3. The learned counsel for the appellants has raised the following points: (1) that the principal relief prayed for being that the plaintiff be adjudged to be rehandar in respect of the disputed houses, it should have been valued at Rs. 3800 which is the principal amount advanced under the rehan; (2) that the Munsif had no pecuniary jurisdiction to entertain the suit and no proper court-fee has been paid on the plaint, and (3) that the relationship between the defendants and the plaintiff being that of mortgagors and mortgagee, the plaintiff could only sue for enforcement of mortgage and not for recovery of possession and money which represented the interest on the loan.

4. I do not think there is any substance in the appellants' contention that the suit as framed has been undervalued and is beyond the pecuniary jurisdiction of the Munsif. On reading the entire plaint, it appears that the plaintiff does not complain of his status as a mortgagee having ever been challenged, and that the prayer that “it may be adjudged by the Court that the disputed houses are held in rehandati interest by the plaintiff under a rehan deed” is merely ananeillary one. In agreement with the lower appellate Court, I should hold that this was the result of unskillful drafting. The plaint as a document must be read as a whole. So read, it means to say that the plaintiff as lessor was entitled to eject the defendants-lessees on termination of the lease. They had to give a narration of the events leading up to the creation of a lease in respect of the houses in dispute. I would, therefore, reject this branch of the appellants' argument as unsound and without any substance.

5. Next, I shall address myself to the correct, ness of the contention that the plaintiff is not entitled to sue in this form but is bound in the particular circumstances of this case to enforce the mortgage or to sue for recovery of money due under the mortgage. Before I consider it as a point of law, I shall advert to certain facts I have found or admitted. They are: (1) that the mortgage in suit is one with possession but without interest, and (2) that the mortgage was for a term of 5 years from the month of Asarh 1335 to the month of Jeth 1340 Fasli. Thus the term of the mortgage being over by the time the suit was instituted, it would be either a matter of contract for the plaintiff to be entitled to interest on the sum lent or a matter of discretion for the Court to grant him compensation for detention of his money which became due since the end of the month of Jeth 1340 (for the aforesaid terms of the mortgage I rely upon para. 3 of the plaint.) (3) that the agreement for leave which was entered into simultaneously with the mortgage as for a term of 4 years from Asarh 1335 to Jeth 1339 Fasli (vide para. 4); (4) that the plaintiff's case that after the expiry of 4 years from the date of mortgage, there was an agreement for enhancement of rent from Rs. 2 to Rs. 5 a month has been rejected by both the Courts below; (5) that the plaintiff's case that the defendants agreed to pay interest on arrears of rent at the rate of Rs. 1/9 has also been disbelieved by the Courts below, and (6) that the learned lower appellate Court has not recorded any finding as to whether a fresh agreement of lease was entered into between the parties after expiry of the term of the kabuliat executed simultaneously with the rehan deed.

6. In this connection I should quote the lower appellate Court's finding on one of the points formulated by him for decision, namely, point No. 2 (If not, whether the houses were let out to the defendants? If so, at what rate of rent?).

“Now it in to be seen as to whether or not the houses were as a matter of fact let out to the defendants by the plaintiff. This point has been rendered quite simple. The kabuliat does clearly bear out the existence of the relationship of landlord and tenant between the plaintiff and the defendants. So I agree with the learned Mnnsif and uphold his finding to the effect that the two houses were as a matter of fact let out to the defendants by the plaintiff.”

7. Later than this he discusses the question whether the rent settled was at Rs. 2 a month or it was subsequently raised to Rs. 6 a month. In discussing this point, he did not believe the papers produced by the plaintiff in support of his story of subsequent enhancement of the rent.

8. Coming to the trial Court, the finding in this behalf is still weaker. After pointing out various suspicious features of the transaction of rehan, he proceeds to say:

“But whatever it was defendants having executed the kabuliat are bound by it. Through the kabuliyat defendants admitted liability to pay rent at Rs. 2 per month. Plaintiff's case is that four years after the kabuliyat there was a fresh agreement verbally made by which defendants agreed to pay rental of Rs. 6 per month. In support account papers (Exts. 1 and 1A) purporting to have been signed by defendant I have been produced. Defendant 1 emphatically denied that he signed these papers or ever agreed to enhancement of rent. The evidence of the plaintiff as to the accounting or realisation of rent is unsatisfactory. Had there been enhancement of rent from Rs. 2 to Rs. 5 plaintiff would surely have taken care to get a fresh document executed. He would at least have taken care to get defendant's thumb-mark on the alleged account papers. He further says that he has got mahajani income of Rs. 25,000 or 30,000 and has got bahis and the rent realised from the defendants used to be entered in his ‘jamakharach’ which is at home. He should have produced his bahis which at least would have more reliable than these chits of paper. Then there is another material contradiction on this point between the statement of the plaintiff and that of his witness. The plaintiff says that when defendant 1 was given the house at the enhanced rental he was asked to execute afresh kabuliyat but that he said that it would mean useless expenditure to him. The witness (P.W 2) however says that when the rent was enhanced defendant 1 was not asked to execute a kabuliyat in respect of rent at the rate of Rs. 6. The alleged fresh agreement for payment of an enhanced rent of Rs. 5 has not been proved. Plaintiff is entitled to rent only on the basis of the kabuliyat. The account portion of the plaint however would show that besides rent at the rate of Rs. 5 a month plaintiff has also claimed Interest on the amount of house rent from the very beginning. This he cannot be allowed for there was no stipulation to pay interest on the house rent.”

9. It seems clear to me that both the learned Courts below have not thought it necessary to come to a clear and specific finding as to whether there was a subsequent agreement as between the parties reviving the tenancy which had already terminated by efflux of time. They seem to labour under the misapprehension that once agreement of lease is entered into and carried out, the defendant should be considered to be a tenant holding over on the same terms as those of the previous lease. It must be on this basis notwithstanding their refusal to believe the plaintiff's case about the subsequent agreement of enhancement of rent, they decided to grant the plaintiff a decree for recovery of rent at the rate of Rs. 2 as settled in the kabuliyat. If this is an error both the Courts below have fallen victim thereto. In taking this view both of them have lost sight of the original relationship between the parties of mortgagor and mortgagee. The mortgagor is bound under the contract of mortgage not only to hand over possession to the plaintiff at the time the mortgage is executed but at any other subsequent time and is also bound to keep him inf possession without any disturbance either by him or by anybody claiming a superior title. As soon as the relationship of lessor and lessee comes to an end by efflux of time, the parties stand as against each other as mortgagor and mortgagee. If the mortgagor still continues to retain possession of the property in the absence of any clear; specific contract to the contrary, it amounts to & default on his part in fulfilment of his contract of making over possession to the mortgagee. If that case the remedy open to the plaintiff would be such as he is entitled to in his capacity as mortgagor. In the absence of any other agreement they cannot advance a claim other than the one accruing to them as mortgagees.

10. Mr. Rajkishore Prasad has invited my attention to several decisions of which the most important is that in the case of Udai Chand v. Jang Bahadur Singh, 2 P.L.J 363 : (A.I.R (4) 1917 Pat. 401). In that case the defendants executed a usufructuary mortgage in favour of the plaintiffs on nth August 1896, in respect of shares in several Mauzas inclusive of 200 bighas. Out of the latter 60 bighas were left in possession of the mortgagors with a liability to pay rent of 8 annas per bigha for use and occupation. By a kabuliyat dated 25th September 1902, a further area of 4 bighas 10 kathas was let out to the defendants at a rental of Rs. 14-5-6. The question for decision was formulated by his Lordship Mullick, J. in the following words:

“The first and most important question foe determination is what is the construction to be put upon the clause” relating to the letting of the 50 bighas. Was it an attornment clause creating the relationship of landlord and tenant or was it a mere condition of the mortgage as between mortgagor and mortgagee, and was the stipulation for payment of Rs. 25 per year in essence a condition for securing the principal and interest.”

11. His Lordship worded his conclusion in the following words:

“We have most anxiously considered the bond and are satisfied that the relationship of landlord and tenant was not created by this stipulation. It was not an attornment clause at all. It was an arrangement made by favour of the landlord by which the mortgagor was allowed to remain in possession in the capacity of something like a licensee. It is admitted that the rent of -/8/- per bigha was not a fair and reasonable rent and I can conceive of no reason why the mortgagee should have brought the mortgagor upon the land at such a grossly inadequate rental knowing full well that by the operation of our tenancy laws the latter might Bet up rights in derogation of his own rights as mortgagee. How dangerous such an act would have been if the lands had been ordinary agricultural land has been shown by the fact that the Munsif found that the 50 bighas are not zeriat lands and that the occupiers have occupancy rights.”

12. In another part of his judgment his Lordship said:

“We ought not unless we are compelled to do so, hold that the mortgagee did in this case what no ordinary prudent mortgagee would have done. In my opinion, the deed may be construed as showing that the real relation between the parties was not that of landlord and tenant but mortgagee and mortgagor and that the arrears of rent claimed in the present suit are really on account of principal and interest. In England such sums are a charge upon the property but the mortgagee is entitled to re-enter if there is a clause to that effect. In America the stipulated rent is not a charge upon the property and the mortgagor may redeem without paying rent due to the mortgagee on the ground that the agreement to pay is only personal. Namu v. Raman, 16 Mad 335; Altaf Ali Khan v. Lalta Prasad, 19 All 496 : (1897 AWN 128); Imdad Bassan Khan v. Badri Prasad, 20 All. 401 : (1898 AWN 90); Madhwa Sidhanta Onahini Nidhi v. Venkataramanajulu Naidu (26 Mad 662) and Baghelin v. Mathura Prasad, 4 All 430 : (1882 AWN 71), favour the view that what is to be looked at is the real intention of the parties and that even when the alleged attornment is created by a conveyance other than the mortgage deed it is open to the Court to hold that the mortgage and the lease constitute one transaction and that the mortgagee is entitled to count the alleged rent as a charge upon the mortgaged property qua principal and interest.”

13. The ultimate result of that suit was based upon the terms of the mortgage deed, his Lordship holding; “The plaintiff is entitled upon the terms of the mortgage deed itself to a decree for the amount claimed as rent and for recovery of possession upon the terms of the mortgage of the 50 bighas.”

14. On facts similar to the present in the case of Baghelin v. Mathura Prasad, 4 All. 430 at p. 435 : (1882 A.W.N 71) it was said by Straight, J. of the Allahabad High Court:

“Looking at these facts, we think it abundantly clear that when the plaintiff sought to enforce the second condition of his mortgage by cancealment of the lease and entry upon the property mortgaged, he was obstructed by the defendant, and the question then arises, whether this conduct upon her part affords the plaintiff a cause of action in respect of the earlier condition as to the payment of interest, and entitles him to bring the present suit. We think that the mortgage and lease transactions must be regarded as one and indivisible, and that the mere use of the term lease in reference to the mortgagor does not alter his real character or qualify the proprietary rights that continued in him. In fact, in dealing with the questions raised in the case, they can only be decided qua mortgagor and mortgagee”.

15. In the case of Altaf Ali Khan v. Lalta Prasad, 19 ALL. 496 : (1897 AWN 128) it was said:

“The only question which has been raised and which we have to determine, is whether, by reason of the granting of the lease to which we have referred, the relation which subsists between the parties was that of landlord and tenant and the plaintiffs' only remedy for the arrears due upon the lease was a suit in a Court of Revenue, or whether the parties stood to each other in the relation of mortgagee and mortgagor and the plaintiffs are entitled to maintain their claim in the civil Court.”

16. On this question it held:

“we must hold that the parties stood in the relation of mortgagee and mortgagor, and that the relation was not altered by reason of the execution of the lease.”

17. The decision in the case of Hira Lal v. Ghasitu, 16 ALL. 318 : (1894 AWN 107 (F.B)) affords a parallel instance in which the question was very pointedly raised. The facts of that case were that after the making of the mortgage the plaintiff by a deed let to the mortgagor the defendant-respondent the mortgaged property for a specified term. The lease contained a convenant by the mortgagor that on the expiration of the stipulated period, he would quit the land without any objection. The term of the tenancy expired. The defendant mortgagor did not offer to execute a fresh kabuliat nor does it appears that he was I willing to execute one but he refused to go out of possession. The plaintiff mortgagee then sued for recovery of money contending that the case fell within cl. (b) or cl. (c) of Section 68 of the Transfer of Property Act. The defendant resisted the suit saying that the plaintiff was entitled to recover rent from the defendant in a revenue Court and was not entitled to enforce the liability under the mortgage bond. It was held by a Full Bench of the Allahabad High Court that the mortgagees were entitled to a money decree for the amount due under the mortgage. The contention of the defendant that the relationship of landlord and tenant had been created and this relationship superseded that of the mortgagor and mortgagee was negatived. Banerji, J. expressed himself in the following words;

“By the terms of the mortgage deed the mortgagees were entitled to remain in possession until the repayment of the mortgage-money, and the mortgagor was liable, not only to deliver possession to the mortgagees but to secure to them quiet and undisturbed possession. For a breach of that obligation the remedy of the mortgagees was twofold. They could either sue the mortgagor to recover possession of the mortgaged property, or they could bring a suit to recover the mortgage-money. This, last remedy is given to them by S. 68 of Act No. IV of 1882. Clause (c) of that section provides that in case of failure on the part of a mortgagor to deliver possession or to secure possession without disturbance the mortgagee is entitled to recover the mortgage-money. Thera is nothing in that clause to limit it to cases in which the mortgagor fails to secure undisturbed possession to the mortgagee in the first instance…. The clause as it is worded, is wide enough to include every instance of failure by a mortgagor to secure a mortgagee in undisturbed possession at any time during the period for which the mortgagee was entitled to remain in possession. The subsequent dispossession of the mortgagee after possession was once delivered to him is in my judgment a failure on the part of the mortgagor to secure him in undisturbed possession.”

18. In this particular case in view of the fact that the usufructuary mortgage was for a term of five years from 1335 to 1310 Fasli, it would be wrong to hold that by creation of this lease the term of the mortgage should in effect be extended. If the plaintiff be entitled to maintain the present suit and to obtain the reliefs prayed for, it would amount to grant him a decree to which he can hardly be entitled under the mortgage. As it has been pointed out by his Lordship Mullick, J. in the 2 Patna Law Journal case that in construing whether the relationship of mortgagor and mortgagee has been allowed to merge in the relationship of landlord and tenant, it has to be considered whether a prudent mortgagor or a prudent mortgagee would think it proper to do so in the circumstances of a particular case. It is ordinarily to be considered that the creation of the lease in favour of mortgagor is by way of fulfilment of the terms of the mortgage and failure to fulfil the conditions of such a lease would always amount to failure on the part of the mortgagor to discharge the statutory obligation of maintaining the mortgagee in undisturbed possession of the property mortgaged. Such failure, therefore, will give rise to such statutory remedies as are available to the mortgagee as such. It would at any rate be absurd to conceive that the relationship of landlord and tenant would subsist even after the expiry of the term of the mortgage.

19. Had it been shown to me that in terms of the deed of mortgage the plaintiff was entitled to recover possession even after expiry of its term or that he was entitled to recover interest on the sum advanced, I could have granted him a decree. But as I have already shown, the mortgage was for a term of five years and it was without interest. Under the circumstances so far advised, I do not find my way to give the plaintiff a decree either for possession or for recovery of rent claimed in lieu of interest. After expiry of the term of the mortgage, the mortgage money be comes due and his remedy in under Section 68 of the Transfer of Property Act. I would, therefore, dismiss the plaintiff's suit whose remedy in my view, on the facts and circumstances appearing on the record, is under S. 68, cl. (d), Transfer of Property Act. In the result, the appeal is allowed. The judgments and decrees of the Courts below are set aside. I will, however, make no order as to costs.

R.G.D

20. Appeal allowed.