Juggeewundas Keeka Shah v. Ramdas Brijbookundas (India)

I1 MOORE IND. APP., 487 JUGGEEWUNDAS KEEKA SHSH

[4871 J U ~ ~ E ~ ~ ~ ~ ~ ~ ~ S KE KA SHAH,-AppeEEani; RAMDAS BRTJBOOKUN-

~ A S , - ~ ~ ~ ~ ~ o ~ ~ ~ e ~ t * [fkb. 25, 26, 18411.

O n uppeal from the Sudder- Dewamg dltnzcl~ft ot B o d ~ g .

Hortgagc of a village which was p a r t ~ e r s ~ i i p property, made by some of the

partners for the benefit of the Firm, held binding on a member of the firm,

though not executed by him.

Tri pursuance of a stipulation contairied in a mortgage-deed, that the Mortgagees

diould be at liberty to place a Mehta (or Clerk) of their owl1 to receive the

(~ollec~ioiis, to be paid a weekly salary by the ~ o ~ t g a g o r s , such oEcer was

appointed, who receired the collections for the first few years, and paid them

over to the Mortgagees, but afterwards discontinued such payments, and

handed over the amount of the c o ~ l ~ t i o ~ l s to the Mortgagors. AIL attach-

ment having issued against the estate a t the suit of a late partner for the

amourit of his share of the property upon a dissolution of the partnership,

held by the Judicial C o i ~ i t t e e (overrulin~ the j u d ~ m ~ ~ i t of the Sudder

Court), that the appointinent of a Hlohta by the Xortpgees was a possessiort

by &ern only so long as he continued to pay the collections over to the account

of their mortgage, and that the subsequent payment by him of the cdections

to the Hortgagors did not create a forfeiture by the Mortgagees; the effect

of the power to appoint a Mehta bein6 merely equivalent to the Mortgagee’s

right to receive the rents and profits i f they should think fit, and would not

opcrate so as to postpone their security to the attachment subsequently ob-

tained, unless they permitted.the paynzents to be made to the ~ ~ o r t g a ~ o r s

after notice of such attachment.

This was a n appeal from a decree of the Sudder Dewanny Adawlut, reverking a

previous decree of the Zillak Court of Surat, in a suit brought by the Appellant,

~uggeewundas Keeke Shah, and another, against, the present Respondent, for the

purpose of procuring the removal of an attachnie~~t which had been issued by the

~ e ~ p o n d e i i t against a village called ~ u z e e g a u ~ , in execution of a decree obtained

by him in a wit against the heirs of the shop or house of business uf Lal-kishen,

the proprietors of the village in question. [&8] The ground upon which the

~laint i f fs in the suit sought the removal of the ~espoi~dent‘s attachrIi~nt was, that

the village, together with a house in Surat, were inchded in a previous iuortgage

executed i n their favour by the heirs by Lal-kishen.

The Respondent had been a partner or shareholder in Lal-kishen’s Firm, and 011

the 24th of December, 1822, a decree was made by the Zillah Court of Surat, in a

suit between him and the heirs of the shop of Lal-kishen, by which a sum of Rs.

19,025 was awarded to him in satisfactioii of his share in the assets of the Firm,

and a t the same time all the assets of the Firm, including the village in question,

were decreed to the heirs of Id-kishen, as the continuiiig partners of the shop.

To satisfy the amount of this decree, the Respondent applied to the Court to be

put into possession of the village ~ ~ ~ e e ~ a ~ ~ ~ ~ i , but the Appellant and his eo-Plaintiff

alleged that they were entitled to the premises, by virtue of a moi~ tgag~ which they

held.

Ultimately, an Order was made for an attachment to issue against the village

in favour of the Respondent, and i t was for the removal of this a t t a c ~ ~ ~ n e n t tha

the Appellant and his eo-Plaintiff, on the 3rd of September, 1825, filed their plaint

in the Zillah Court of Surat, in which they set forth that the sum of Its. 17,855. U. 5 5 .

was the balance of principal and interest due to them by virtue of their mortgage-

bond, which they described as having been given in the year 1234 Hijra, A.D. 18111,

by Sliah Poor~~iotumdas Lal-das, ~ u ~ ~ c e w i ~ n - d a s , and D u l p u t r a ~ ~ , the heirs of La)-

kishen, to secure the payment of the eum of Rs. 18,251, upon the revenues of the

village Muxeegaum, and a House a t Surat.

* Present : Nembers of the Judicial Committee,-Lord Brougham, Mr. Baroil

Parke, Mr. Justice Erskine, and the Right Honourable Dr. Lushington.

Privy Councillor,-i4ssessor,-Sir Edward Nyde East, Bart.

-- I__- -___^ I____ I” -- ~- -- II____x -- --__ - _I-

386

U. RAMDAS B ~ I J ~ ~ ~ ) ~ u ~ - ~ ~ s f18411 11 XOOEE IND. APR. 489

[&SI On the 21th of September, 1825, and before putting in his answer ta the

plaint, the Respondent presented a petition to the Court, in the suit in which he

had obtained his decree for the sum aforesaid, st

which the a t t a c ~ ~ ~ ~ i e n t bad been awarded to him, and pray~ng that the village might,

be given into his possession, but the Court declined making any order thereon

pending the ~ r o s e c u t ~ o ~ of the present suit. The ~ e ~ p o n d ~ ~ t shortly ~ f ~ e r m ~ r d s

put in his answer to th0 plaint, in which lie alleged that the Plaintiffs in their

~ o r t ~ a g e - d e e d had retained the power of ~ a k i n ~ the collections in the viXXag:e;

that the yearly produce of the village was Rs. 4000, but that the I'laintiffs had

written in their own mortgage-bond that the yearly amount was Rs. 3200, so that,

by their own account, Rs. 19,200 of their claim had been repaid. That the Plain-

tiff h might, perhaps, claim a small balance for interest, Its. 6000. or t~~ereabo~its, n

part whereof they had in their posses,sion a house, valued at Rs. 10,000. The I&

s p ~ ~ d e n t ~ n s ~ s t e d that the house s ~ o u l d be sold for the purpose of satisfying what

was due to the P la in t i~s , and offered to pay whatever balance, in any, should then

remain due to them.

The ~ l a ~ n t i f f s , by their reply, stated that the amount claimed by tlieni was upon

the footing of an account settled hetweea them and the ~ o r t g a ~ o r s , in which were

entered all sums which the ~ o r t ~ a ~ o r s had caused to be paid to them from the

revenues of the iriillage, and that the house was not worth more than Rs. 3000.

The ~ e s p o ~ ~ d e n t , by his rejoinder, charged that inasmuch as the Plaintiffs, the

~ o r ~ ~ a ~ c e s , had by their ~ a r t ~ a ~ e secur d to them %he whob of the produce of

[490] the village, they were liable to account for the whole; and that the Plaintiffs

and the Mortgagors were acting in collusion together, in representing the profits

of the village to have been less than they ivere in fact, in order to defeat the zit?ht

of the ~ ~ e s p o ~ d e n t .

The cause being at issue, the parties eiitered into evidence.

The ~ l a i n t ~ ~ s produced the y ~ ~ ( ~ r t ~ a g ~ b o n d , dated the 8th of August, 1819, and

which was in the following form :-

" The reason of writing is this, that me, ~ o o r ~ ~ i o t u ~ - d a s the SOIL of Lal-das, and

La!-das the Son of Hishen-das, and J ~ ~ ~ g e e w u n d a s and Dulputram the Sons of

Sana-bhaee, and Nana-bhaee the Son of ~r~jbookun-das, and ~r~jbookun-das the

Son of Kishen-das, Banians of the Dendoo tribe, ~ i ~ h a b i t a n ~ s of the fortunate sea-

port town of Swat, in Ren~o~e-po l~ {or Street), do state truly in $His matter, that

for the purpose of liquid at in^ the money due to the shop (or Firm) of Lal-Kislien,

we having borrowed money in the name of J u g g ~ w u r ~ ~ u r j e w u n , have l ~ ~ u i d a t e d

the debts of the Firm, and we do place in mortgage the waste and cultivated lands

and fields, together with various trees and wells of water. of the village of Muzeegauin

in the Pe r~unnah of the Chicklee, now under the protection of Surat Sirkar. The

ground has beeu surveyed, and the boundaries defined, and xe are fully corwinced

that this property belongs to us and to QUI heirs, as part of the said firm, aiid for

the purpose of ~ i ~ u ~ d a t ~ n ~ the debts of the said firm it i s ap~ropr ia ted ; we haTe

kept this property in our possession, it being our own, and no other person having

any clairri thereto. Also a pucka ~ s u b 8 ~ a ~ t ~ a l ) built House at Surat, together [49U

with its ground and teakwood posts and beams of three stories of timber, and pucka

built, part of the roof thereof being terraced and part covered with tiles, with one

tank for water, and one well and a ba t l~~n~-p iace ; its four walls are built of burnt

brick and mortar, its boundaries have been nieasured, arid are specified beIo.;i.. This

~ n ~ e r i t a n c e of oars did come to us from our a ~ ~ e s ~ o r 6 , and this property has been

in our possession and use up to the period of giving it in ~ i o r t ~ a g e . So long as it

was not m o r t ~ a ~ e d , it was in our possession, no other person has, more or Ic.;s, arly

title or right thereto. This property of our8 have we for the 811m of SIII-::~

Rs, 18,252, the half of which is 9125. 2.; of the Sur& currency, in part of &is

money mortgaged into the hands of J u g ~ e e w ~ ~ ~ d a s , the Son of ~ u ~ ~ ~ ~ h a ~ * the So11

of Rega-das, a ~ u k ~ a ~ l by caste, and jnhabitant of the S h a w l - ~ e ~ s poll (or Street),

and to ~ r ~ j b o o ~ ~ ~ I ~ - d a s , the Son of Gokul-das, the Son6 of ~ o o ~ ~ ~ b - d a s , by caste

~ressabpoora-banian, ~ n h a b i t a n ~ of ~ h ~ ~ a h Tullow ; and out of th i s money, &.

12,190, being the claim of the Son of Merwan-jee Rustan-jee ~ u ~ k a r i ~ h , in con-

formity to a decree of the A~awlu t Court, dated the 11th March. 1818, A.D.. in the

case No, 436 of 1817, -4.D., which he did demand agaiiist the said Firiii, a r ~ d p l t .eip;

387

for the same is written on the back of the decree; agreeably thereto, we caused the

a ~ o u ~ ~ t to be paid by those persons to whom we have x~iortgaged the premises, and

Rs. 2000, in part of the claim of Juggeevml Gunga-shah, settled by account and

handwritings given in the name of Juggeewun H u r j ~ w u n , was paid him OR accoun~,

and the balance of Its. 4052 [$92"J we have received in cash from the persons who

take this mortgage, and have taken possession of the same, and such other petty

claims as existed against the shop we have paid off and tbe entire sum accruing

from this mortgage, a8 per particular statement, we have xeoeived from the holders

of this mortgage. The profit (or interest) of this money is settled for at twelve

anas on these conditions, that the holders of the mortgage are to receive in r e d e ~ ~ r ~ t ~ o ~

the whole of the produce of %lie said village about %. 3000 or 3200, and after allow-

ing for i n t e ~ ~ t , the remainder will go for the purpose of liqu~dating the p r ~ ~ ~ c ~ p a l ~

and they shall continue so to receive and a p p r o ~ r ~ a t e the annual produce until the

whole of their demand be l~quidated; the risk of collecting the income, and of any

deficiency in the revenue, is upon our heads, arid we do further declare that the

holders of the said m o ~ t ~ a g e shall s ta t~on a Mehta (or Clerk) of their 0x11 in the

said village, for the purpose of making the collections; and we, the ~or tgagor s ,

so long as this property remains in niortgage, we do agree to give him a monthly

salary of fire rupees, and his daily food as long as we can afeord to do so. And about

this house which is m o ~ g a g e d we (the ~ o r t g a g o r s ~ have retained it in our charge,

but until your money is liquidated we have no power over its disposal, and whenever

the mort~agees may d e ~ a n d or require their money, we hold ourselves jointly and

individually responsible for the claim. With respect to the repairs, turning of the

tiles, and other matters about the House, also keeping the wells, etc., of the village

in order, all this belongs to us to perforni ; s h ~ u ~ d , [4933 however, any ~ a l a ~ ~ ~ i t ~

(which may Heaven avert) from the hearens or the earth, from the Grassias'"

claims, the sequestrations of the state, or from the ravages of an enemy, or mishap

of any other kind, occur either to the house or the village now given, or should any

former propr~etor, inheritor, sl~areholder, or ~# r tgagee , come forvard and set

up claims thereto, then (for all such) we will be responsible; and in part of the

amount so c l a ~ n ~ e ~ , we will make satis~action to the parties, either from our own

fun&, or from other property, and without harm or damage to the present

securities, we will settle such demands ; the p e r f o r ~ a ~ ~ c e of this belongs to EIS ; and we,

Juggeewunda~ and Brijbookun-das, the holders of the mortgage, do declare, regard-

ing the village and the house which have been written and given for the money

above stated, that they have so been received from the mortg~gors by a d v a r ~ c i r ~ ~

our own money thereon, and we have received them in mortgage agreeably to the

forms and uses of the Mahomedan law. Arid there i s one Sunnud in Persian written

on the 20th of February, 1818, relating to the cause No. 458 of 1816, and another

decree in ~ n g l i s h of an appeal, and another decree of ~ e r w a n j e e ~ s above ~ ~ e ~ ~ t i o ~ ~ e d ;

these three papers have been depos~ted with the mortgagees, and whenever the

amourit for whicb the property has been ~ ~ ~ o ~ ~ g a g e d sh ll be liqu~dated, then they

w i l l be received back again by the ~ ~ r t g a g o r s . ~ '

[@43 AItl~ough the amount for which this mortgage was given was for advances

made by the ~ I a ~ n t ~ f f s for p a ~ ~ i e n t of debts of the firm of Eishen-das, a t a time when

the Respondent was a partner in the Finn, yet the Respondent did not join i x i or

execute the Bond. He did not, however, dispute the original debt or the security.

but he insisted that the P ~ a i ~ t i ~ s must be charged in the present su i t with the

amount of the revenues and profits of the villege, which by the ternis of the n ~ o ~ ~ ~ a ~ e -

bond ihey were to receive.

The Plaintiffs also put in accounts of what, they had received of the profits of

the village, and of what remained due to them for principal and interedt on their

m ~ r t ~ t t ~ e , a n ~ o ~ i n t ~ n ~ to Rs. 17,855. 0. 50.

The presexit Respondent produced as d o c ~ i ~ ~ n t a r y evidence, a ~ o n g s t other

things, the decree of Deeeniher, 1822. under which he was entitled agttinst the con-

++ Persons hereditari l~ e r ~ t ~ t ~ e d to collect the revenue af certain lands in ~ ~ ~ z n ~ t ,

and in some cases to receive nioney payments out of the revenue collected by others,

Grassins' rights were originally acquired as the price of forbearan~e from p l u t ~ ~ e r ,

during the weakness of the native Governments.

388

I- I- - -- --______ ""_ -~ --_ - -- . "

’U. R ~ ~ ~ I ~ A S ~ ~ ~ . ~ ~ O O ~ ~ ~ - ~ A S [I 8 4 11 11 BEBOORE IND. PP., 496

tinuing partners of the house of ~al-kishcn to the afor&qaid sum of Rs. 19,025, in

satisfaction of his share of the assets, and for which the attachment in question in

the suit had issued. The Respondent also filed a copy of a plaint b r ~ u g h t by the

P ~ a i n t i ~ s in the present suit against certain other persons, dated the 4th of November,

2825, from the statements in which it appeared that the Plaintiffs were and had

been in the possession of the village.

~ritnesses were examined only by the Plaintiffs : it appeared from their evidence

that the Plaintiffs had, according to the terms of the Bond, stationed a person a t

the village to make the collections on their behalf, and that the collections from the

village were in fact paid to or on account of the Plaintiffs.

The cause came on to be heard on the 2nd of [495] November, 1826, when the

Zillah Court of Surat, after noticing the c~rcumstances of the case, and adverting to

various particulars which tended to show that although the Respondent was not a

party to the mortgage-bond, it was executed with his privity, observed as follows :-

‘‘ The Defendant has stated in his answer that the Plaintiff’s had received the whole

amount for which the village was ~ ~ ~ r t g a g ~ d ; but to prove the same, the Defendant

has not produced any evidence regarding the handwr~tings of the ~~or tgagor s?

which the F l a ~ n t ~ ~ s have put in evidence: it is not n e c e ~ a r y to make any remarks,

therefore, i t is decreed that the a t t a c ~ ~ ~ e n t placed by the Defendant be removed.

~ e g a r d ~ n g costs, it is ordered that the Defendant pay on Rs. 10,000, and the rest of

the costs the ~ la in t i f f s are to pay over, Although the village of Muzeegaum and

the House at Surat are mentioned in the niortgage-bond, yet this action is brought

to reniove the attachment from the village of Muzeegaum only. It is, however,

specified in the mort~age-bond that so much money was advanced upon the village,

and so much upon the house. The Defendant stsfes this house to be worth Rs. 10,000,

but the Plaintiffs assert it t o be worth not more than Rs. 3000: for this reason the

Court has decreed that the D e f e n d ~ t pay costs only on Rs. 10,000: it i s thus de-

cided, and the cause determined.”

The ~espondent, being d~ssa t i s~ed with this decree, appealed to the Sudder

Dewanny Adadu t of Bombay. After the pleadingxi in appeal had been completed,

further evidence was produced, and an account-current relarive to the mortgage, and

~ r o ~ i g h t down to the period when the a t ~ a c h ~ e i ~ t im.md, was drawn out hy the Order

of the sitting Judge. 5

f4963 The present Respondent also put in an account-Gurrer~~ of the village

from 1819-20 to 182’7.

The appeal came on for hearing before the Sudder Dewanny Court on the 16th of

June, 1827, and on the 11th of December in the same year, the Court pronounced

its decree, wherein it stated, that “ havxng duly considered all the proceedings in

this appeal, the Court is of opinion, thiat the Respondents (the present Appellant

and his co9laintiff in the suit) have used collusioa with the p r o ~ r ~ e i o r s of the

village of ~ u ~ e e g a u m , to the isa appropriation of the income of the rillage, which

ought to have been applied, according to the conditions of the engagement between

them, to the l ~ ~ u ~ d a t ~ ~ n of the sum secured by the mortgage upon it, they, the Re-

spondents in the Court below, having had the full and entire possession and manage-

ment of the property.

‘‘ It is, therefore, now decreed in ~ o r i f o r m ~ t ~ with the Appel~ant’s (the present

~espondcnt’s) original application to the Zillah Court, that the attachment laid by

him upon the village of Muzeegaurri be held in force, by putting the AppeIlaut in

possession of the village, and of the m a n a g e ~ ~ e n t of i t s concerns ; thak the Appellant

do further render a true and faithful account annually to the Zillah Court of Surat,

of all profits, rents, and issues received by him from the said village of Muaeegaum,

together with an account of all fair and reasonable expenses incurred in the rnanage-

ment of it. And that the said A ~ ~ e l ~ ~ ~ ~ t do continue in such possession of the said

village until the sum adjudged to him by the Zillah Court of Surat by i t s decree,

dated the 24bh of December, 1822, with simple interest thereon, and as therein pro-

vided for, be fully paid and satisfied; E4973 the operation of the decree to have

effect from the current Fusal { S ~ ~ ~ r i t 1884): the possession of the village of

~ ~ u ~ ~ g a u ~ mil l then revert to the ~~esporIdents in the Court below. The decree of

the ZilIah Judge of Surat, dated the 2nd of November, 1 826, is accordingly reversed ;

full coats to be paid by the ~ ~ p o n d e n t . ’ ~

389

II MOORE IND. APP., 498 JUGGEEWUNDAS KEEKA SHAH

Against this decree, the present ~ ~ p e K ~ a ~ t , Juggeewundas Keeka Shah, after

petitioning for a rehearing, which was refused, appealed to His late Majesty in

Council; praying that the decree of the Sudder Dewanny might be reirersed, altered,

or varied, for the following reasons:-

1. Because (in the view of the ca,se most favourable to the Respondent) the village

of ~uzeegaum was p ~ ~ n e r s ~ i i p pro erty, and being so, was well charged with

payment of the sum secured by the deed of the 8th of August, 1819.

11. Because it appears from the accounts in evidence, that the sum of Rs. 17,855

was due t~ the Appellant and Urijbookundas Gokuldas, his co-Plaintiff, at the time

of the institution of this suit, and there was no evidence impeaching the accuracy

of these account%.

111. Because if the continued perception of the profits of the village by the tirnr

of Lal-kishen was a deviation from the terms of the mortgage-deed, all the members

of that Firm, ~ n c l u d i n ~ the R~ponden t , were parties acquiescing in that deviation.

and it was incompetent to any of them to avoid the deed on that ground.

W. Because the decree of the Sudder Dervanny Adawlut proceeded on the

~ s s u ~ p t i o n f a state of facts in support of which no evidence was given, and the

main part of which the RespoI~dent had himself [498] admitted to be untrue : and

because the decree was ineonsistenl with the claim set up by the Respondent.

The Itespondent relied upon the decree pronounced, and prayed that the same

might be affirmed, and the appeal dismissed, for the following reasons :-

Because, under the circunratances of the case, and for the purposes of the suit,

the Respondent was entitled to charge the Plaintiffs in the action with the whole

amount of the produce of the village, and, according to this mode of accounting,

thcre was nothing due to the P l a i n t i ~ s upon their ~ o r t ~ a g e at the date of the

decree on the appeal, and the sum of only Rs. 3000, which was the admitted value of

the Izouse a t Surat, was due at the date of the attachment.

Mr. Miller, Q.C., Mr. W i ~ r ~ ~ ~ ~ , Q.C., and Mr. Jackson, for the ~ppell~~nt.-Mr.

Serjeant Spankie, Mr, E. J. Lloyd, and Mr. Ediuund F. Moore, f u r the ~ e s ~ o n d e ~ i t .

Rlr. Baron Parka--This is an appeal from a decree of the Sudder Dewanny

Adawlut, which reversed the decree of the Zillalr Court of Surat, and the Ap~ellant

prays Her Majesty to reverse the decree of the Sudder Dewanny Adawlut, and to

affirm that of the Zillah Court of Surat.

The question arises pr~ncipally on the coI~struction of a niortgage-deed, by

which the revenues of the village of Muzeegaum were mortgaged by the firni of Lal-

Rishcn, in which the Respondent wag a Partner, though he did not actually esecute

rhe Bond. The @99] revenues of this village were mortgaged upon these terms.

An advance had been made by. the Appellarit and another person, not a party to this

Deed, to the amount, nominally, of Bs. 18,000, but actually Rs. 16,000 only were

advanced, and the advance was made for the purpose of paying the partnership

debts of the ~espondent and his co-partners, and the deed was executed by two of

the co-partners, upon which the question in this ease arises.

By the Deed it is stipulated that the village of Muzeegaurn and the House in

Surat should be mortgaged for the sum r~~ent~oned, Rs. 18,000 and upwards. ‘‘ The

profit (or interest) of this ~ ~ o n e y is settled for twelve anas, on these condi~~ons

that the holders of the mortgage are to receive in redemption the whole of the

produce of the said village, about Rs. 3000, or 3200, and after allowing for interest,

the remainder will go for the purpose of l iqu~datir~g the principal, and they shall

continue so to recpive and appropriate the annual produce until the whole of their

demand be liquidated. The risk of collecting the income, and of any deficieiicy in

the revenue, is upon our heads.” “And we do further

declare, that the holders of the said ~ o r t ~ a g e shall station a Mehta (or Clerk) of

tlieir own in the said village for the purpose of making the collections; and we,

the Mortgagors, so long as this property remains in mortgage, we do agree to @re

him a monthly salary of five rupees, and his daily food, 80 long as we can afford to

do so:’

This instrument was not executed by the Respondent, but there i s no doullt that

it was executed on the partnership account. There is no doubt that he was cognizant

afterwards of the execution of this Bond. and that he is hound by the con~ents of tliat

390

That is, the Mortgagors.

t r . RAXDAS B R ~ J B O ~ K U ~ - ~ A S [1841] IS MOORE IND. APP., MW)

[5m] Bond, and he must be considered, for the purposes of this suit, as being a

Xortgagor.

There has been some dispute as to what was done by virtue of this Bond after-

wards. Whether or not actual possession was taken of the property; and their

Lordships think the conclusion they ought to come to upon the facts in evidence in

the cause is, that actual possession was taken by virtue of the mortgage. It i s

clear that there was a Melita appointed, who was paid by the Mortgagors, and who

inight have received the rents and profits of the village, arid he probably did receive

the rents and profits of the village for a year or two, but afterwards perruitted the

Mortgagors to receive them for four or five years afterwards.

Now, the question will be, in what way the Mortgagee’s rights are affected by this

conduct, and that will depend first upon the construction of the instrument itself.

If this is a ~ ~ r ~ d ~ n g contract, binding between him and the M o r t ~ a ~ o r s , binding him

to apply the rents and profits to the payment of the debt, he might be considered as

having forfeited his right to pa.yinent in consequence of having allowed the Mort-

gagors themselvea to take possession of the rents and profits during some of the

gears during which the Mehta was in possession. But their Lordships are of opinion,

that that i s not the true construction of the Deed, lout that it is merely a power to

satisfy ~~imself, just as an English. Mortgagee may, by taking possession of the

rents and profits of the estate; and if an English Mortgagee chooses to forego the

benefit of receiving the rents and profits, and permits the ~ ~ o r t ~ a g o r to take them,

it wodd have no effect as between hini and the Mortgagor; he would have a full

right to recover his debt by reason of the mortgage. The only effect would he when

some sulrsequent incurn-[501]-branoer came in, and he had notice of that claim. Iu

that case the rule and law of England would be, that if after notice he permits the

Mor~gagor to receive the rents and prcbfits, he exposes himself to the claim of the

second incumbrancer, and that is the principle which their Lordships think ought to

be applied to the present cme.

That being so, there is no doubt that this transaction was valid up to the time

of the nutice of the R ~ p o n d e ~ t ’ a cl im, that is, up to the time when the attaclin~ent

was served, by being delivered to the Officer of the village, or in whatever way it was

executed ; but until that attachment was executed, there was no notice to the &fort-

gagee of any adrerse claim on the part of the 1~espondent. !Fhe claim did not arise

till the suit for the termination of the partnersh~p was adjusted, at which time the

estate became the property of the other Partners, and the ~ e s p o i ~ d e ~ ) ~ became en-

titled by virtue of that decree to claim against his co-partners for the a ~ ~ ~ o u n t of

19,000 and odd rupees : when he proceeded to enforce that claini by attachment, he

became i n the situation of a second incumbrancer, and not before ; and, therefore,

their Lordships are of opinion, that though possession was taken by the Mortgagee

by means of his Mehta, and though he might have received the proceeds of the village

from 1819 to 1824 or 1825, yet he i s not to Ix! charged in account with moye thtm

he actually received during that time. But when the attachment was placed upon

the village, he had notice of an adverse claim ; and if after that time he permitted the

~ o r t g a g o r s to receive any portion of the profits of that estate, then he ought y i th

respect to the nioneys so received to be postponed to the subsequent i i ~ c u i ~ b r a ~ c e r .

[602] Therefore, their Lordships are of opinion, that the accounts ought to he

taken upon that principal. The effect of that will be, that it wilt be dear that the

Morwa ee i s u ~ ~ ~ a j d the full amount of the principal and interest : tfke principal

kind luterest amount to more than Rs. 25,000 from the date o€ the Borrd dotvn to

the period at which the attachnient was placed upon the village. During that

period it appeitrs that lie had received only between Rs. 7000 and 8000, and, there-

fore, there would be a large balance due to him. But then he is to be charged for

about tn’o years, during which time he permitted the Mortgagors, after the attactl-

inent was placed, to receive the rents and profits of the village. But still that would

not be anything near the payment of the principaI and interest due upoxr the Bond.

Their bordships will give a direction to enable the ~ e s p o n d e ~ l t to erlforce his

claim aguiust the estate, subject to the account so taken, reserving to the Mortgagee

his ciaint for the balance against the House in Surat, and also against those who

are personally respo~~s~ble to him for the amou~lt of the mone;o ~ r ~ g ~ n a ~ l y advanced.

and further also against the proceeds of the estate, as soon as the Respondent’s del~c

391

P g

11 HOORE INn. BPP.. 603 RAJAH PEDDA VENCATAPA NAIDOO

is satisfied, provided it turns out that the proceeds a re suEcient to discharge his

debt, and to leave a surplus.

Therefore, the form of the minute which their Lordships will make as to the mode

in which the accounts shall be taken is this: “Judgment to be reversed. Account

to be taken of the principal and interest due on the mortgage of the village of

Muzeegaum, and the sums actually received by the Appellant prior to the time when

the attachment issued, and that the Appellant be charged in that account with the

amount [SO31 which he might have received after the attachment, but for his wilful

default. If the attachment prevented him from receiving a t all, of course he will

not be charged; but if the attachment was only initiative, in order to ground an

execution upon it, and still permitting the person in possession to receive the rents

and profits, and if he has permitted the Mortgagors to receive them, he will be

charged : so the words will be, That the Appellant be charged the amount which he

might have received after the attachment, but for his wilful default, and that after

taking the account, he be permitted to continue in poss~ssioii of the village until

the balance due on that account with interest be fully paid ; that after the same is

paid, the Respondent be permitted to proceed under an attachment to satisfy his

demand, reserving to the Appellant right to come against the balance of the proceeds

of the estate, after satisfying the Respondent’s claim, and against the House a t

Surat, and against such parties as are personally liable to him for the balance of

his claim.”

Their Lord-

ships are of opinion, that it is perfectly clear, that he must be entitled to hold the

estate for some time t o come: he will be entitled to his coets, that is, the costs of

the proceeding in the Court below, to be calculated upon the principle adopted in the

Zillah Court; and that part of the suit being wrong, and part right, he ought also

t o have the costs in the Sudder Dewanny Adawlut, and the costs of the appeal, with

liberty to redeem the mortgage, by payment of the principal and interest.

Then the only remaining question will be the question of costs.

&04] RAJAH PEDDA VENCATAPA NAIDOO, Bahadoor,-Appelh& : AROO-

VALA ROODRAPA NAIDOO and PAUPA NAIDOO,-Recpomdmts *

[July 1, 2, 18411.

Oio appeal from the Sidder 1Ieu)anm~ Court of Madrag.

A Zemindar having discha;ged certain persons, his Dewans and Tahsildars, €or

alleged misconduct, and ejected them froin a House and other premises

claimed and occupied by them for above twenty years, and to which he could

himself show no title, except as being within his zemindary; and having

caused the discharged Officers to be placed under personal restraint, and

seized all their property situate within his zemindary, decreed on appeal

by the Sudder Court (and affirnxed by the Judicial Committee), to restore

possession of the premises, and to pay compensation in damages, v i th costs,

for the wrong and injuries inflicted.

In this case the suit was instituted to recover damages for certain injuries in-

flicted by the Appellant on the Respondents, Aroovala Roodrapa Naidoo and Aroo-

vala Vencata Royaloo Naidoo, since deceased, the Father of the Respondent, Paupa

Naidoo, and on their property, the damages were laid a t Rs. 25,557. 15., which con-

sisted of the following items: first Rs. 21,057. 15., the value of certain Houses,

gardens, goods, chattels, etc., of which the Respondents had been forcibly dis-

pmsessed bp the Appellant; second Rs. 5000, on account of damages for personal

* Present : Members of the Judicial Committe~,-Lord Brougham, Mr. Baron

Parke, the Right Honourable Sir Herbert Jenner, and the Right ~ o n o u r a b l ~

Dr. Lushiagton.

_____-- _ _ _ ~ - ___ __ __ _______,I_-__ -

Privv Councillor,-Assessor,-Sir Edward Kyde East, Bart.

392