1. The suit out of which this appeal arises was brought by the plaintiff for a declaration that a deed of mortgage made in March, 1894, by his father is null and void. The plaintiff also sought to recover possession of the property.
2. The plaint stated that the plaintiff is and his father was, a Talukdar of Kherda and the mortgage-deed was void under Section 28 of the Broach and Kaira Incumbered Estates Act, XXI of 1881 after the death of the mortgagor, the plaintiff's father. The defendants are the representatives of the original mortgagee.
3. The lower appellate Court has decided in favour of the plaintiff upon the main contention and nothing has been said in the argument before us to lead us to doubt the accuracy of that conclusion. Under Section 28 of Act XXI of 1881 it is provided that in circumstances such as we have here no mortgage shall be valid as to any time beyond the natural life of the mortgagor Talukdar.
4. Mr. Thakor, however, on. behalf of the defendants, has contended that they are entitled to recover back the money advanced by them on the mortgage and that until this restitution is made to them the plaintiff has no right to recover possession of the property. The learned pleader has relied in the first instance upon Section 65 of the Indian Contract Act. That section, however, in my judgment is of no application. For the case before us is not a case where an agreement is discoverd to be void or where a contract became void. The present is a case rather of a transfer of property by way of mortgage, the transfer being perfectly valid when made and remaining valid for a certain period of time fixed by the law, i.e., the life-time of the mortgagor.
5. Then the learned pleader called in aid of his contention this Court's decision in Javerbhai v. Gordhan (1914) 17 Bom. L.R. 259. That case must, however, as I think, be distinguished. It was a case under the Bhagdari Act, 1862 and the consideration for the mortgage failed ah initio. In those circumstances the Court held that it was open to the plaintiff-mortgagees to recover under the covenant, which provided that if there should be any hindrance or obstruction concerning the house, the defendants and their property, their heirs and representatives would be liable for any loss which the plaintiffs might suffer and for the moneys which the plaintiffs had advanced. In other words, in that case, since the mortgage was void from the beginning, the event contemplated in the covenant had in fact happened and the plaintiffs were entitled to take advantage of that happening. The covenant in the present case is in form very like that in Javerbhai's case. It runs in these words: 'If any manner of obstruction or hindrance be caused or any claim or right be preferred as regards this land, I personally, my heirs and representatives and children are to be answerable for your amount in respect of the mortgage.'' But it seems to me impossible to say here that the event contemplated in the covenant has in fact happened. For the defendants actually obtained possession of the mortgaged property and retained possession of it until the death of the mortgagor, i.e. for a total period of about nineteen years.
6. Now the parties to this mortgage and this covenant must, I think, be taken to have contracted with reference to the existing law and the covenant must be read as limited to the time during which the mortgage remained valid under that law. During all that time, as I have said, there was no hindrance or obstruction or any other circumstance which could call the terms of the covenant into operation. It is true that the defendants' term of possession has been shorter than it would have been if the law had been otherwise. But I cannot see how the defendants can lawfully complain of that. They must in my view be regarded as having taken their chance as to the length of their possession. As the learned District Judge observes: 'Presumably the mortgagor and mortgagee knew how they stood and I suppose the mortgagee took proper care of his interests in view of the unsatisfactory nature of his security'. I am of opinion, for these reasons, that the contract between the parties has effectually been carried out subject to the law of the country according to which they must be taken to have contracted. It follows, therefore, that the defendants are not entitled to any money compensation for handing over possession to the plaintiff.
7. The appeal, therefore, in my opinion, fails and should be dismissed with costs.
8. I am of the same opinion.