1. The suit out of which this appeal arises was brought by Lochan Singh plaintiff-respondent to enforce a hypothecation -bond dated 6th December 1928 executed by one Darbari Lal to secure a sum of Rs. 4000. Darbari Lal is dead and is now represented by respondents 2 to 4. The appellant Jugal Singh alias Jugal Kishore is a transferee of the mortgaged property and has been impleaded as such. It appears that one Mt. Mul Kunwar, widow of one Lala Hoti Lal who died in the year 1869 was in possession of the zamindari property in dispute situated in village Nehrai, pargana Hathras, district Aligarh holding a life interest therein. She made certain alienations in favour of certain persons and Darbari Lal as a reversioner of Lala Hoti Lal brought a suit No. 31 of 1928 in the Court of the Additional Subordinate Judge of Aligarh against the alienees from the widow to recover the property as well as the mesne profits. The suit was decreed conditional on the payment of Rs. 1655 in Court. Darbari Lal obtained this decree on 17th November 1928 and a few days after that on 6th December 1928 the present mortgage was executed.
2. One Rajan Lal had a simple money decree No. 597 of 1928 against Darbari Lal. In execution of this decree he had the zamindari property in village Nehrai sold and it was purchased by one Champa Ram. Subsequently on 21st August 1929, Champa Ram sold the property to Jugal Singh alias Jugal Kishore appellant who thus became the owner of the mortgaged zamindari property. Jugal Singh paid Rs. 1655 under the decree No. 31 of 1928 and got possession over the property. He is thus impleaded as the person in possession of the mortgaged property. Jugal Singh alone contested this suit. He denied the execution of the mortgage and pleaded that it was without consideration. He further urged that Darbari Lal was not the owner of the property in dispute, nor was he in its possession and there-fore he was not entitled to mortgage the same. It was also pleaded that the defendant-appellant was the purchaser from the ostensible owner and was protected by Section 41, T.P. Act, and that the suit was barred by time. The appellant also claimed the benefit of the agriculturists' Belief Act for a reduction of the interest and further pleaded that the plaintiff-respondent was not entitled to interest and costs as he had not complied with the provisions of Sections 32 and 34, Agriculturists' Relief Act.
3. The learned Civil Judge framed as many as 10 issues and finding each one of them against the defendant decreed the claim in full. He however made it clear in the operative part of the decree that excepting the rights under the decree the rest of the property will be sold. The defendant Jugal Singh has come in appeal and the grounds raised on his behalf are: (1) That the bond in suit was not validly executed and attested and for consideration; (2) That the rights under decree No. 31 of 1928 were not immovable properties and Darbari Lal did not own any property on the date of the mortgage and therefore he could not make a mortgage of the. same; (3) That the defendants were bona fide purchasers for consideration without notice; (4) That the claim was barred by limitation; (5) That the defendant-appellant was entitled to the benefit of the Agriculturists' Relief Act; (6) That the entire property could not be sold in lieu of the mortgage money.
4. We have heard the learned Counsel for the parties and in our opinion this appeal has got no force and must be dismissed. It has been argued that under the decree No. 31 of 1928 Darbari Lal was not vested with any title in the property in village Nehrai. His title was contingent on the payment of Rs. 1655 and before that payment was made he had no right or title to the property and could not deal with it. In our opinion this contention has got no force. On the death of the widow Mt. Mul Kunwar the property vested in Darbari Lal who was the nearest male reversioner. It was no doubt true that the alienations made by the widow were voidable and were quite good till the rightful owner brought an action to avoid them. But as soon as the suit No. 31 of 1928 was brought by Darbari Lal the possession of the alienees became wrongful and he became entitled to possession of the property. Under the decree he was not entitled to possession until he paid Rs. 1655 but all the same he was the owner of the property and was certainly entitled to deal with it and for the matter of that could mortgage it.
5. A great deal of confusion has been caused by the fact that in the deed of mortgage dated 6th December 1928 not only the property in village Nehrai but also the rights to the decree No. 31 of 1928 together with all rights appertaining thereto regarding the realisation of the amount of costs and the right of possession were also mortgaged. It was contended on behalf of the defendant-appellant that this was only a moveable property and could not properly be mortgaged. The learned Civil Judge was provoked to a discussion of the nature of the property and has expressed his idea about mortgages and pledges and assignment of decree in a somewhat confused language. It is not necessary to go into that point at this stage as the learned Civil Judge has expressly mentioned in the operative part of the decree that the rights under the decree (No. 31 of 1928) will not be sold. A good deal of discussion has centred round the proposition whether in the decree No. 31 of 1928 which was passed in favour of Darbari Lal for possession over the property, conditional on payment of Rs. 1655 and in which no time for payment was given, an application for deposit of the amount or for possession of the property could be made after the lapse of three years. The point appears to us to be wholly irrelevant in this case as there is no such application before us and we are not called upon to decide whether it was barred by time or not. As a matter of fact the appellant himself purchased the property in execution of the decree No. 597 of 1928 (Rajan Lal v. Darbari Lal). When he deposited the money an objection was taken on behalf of the judgment-debtor that it was barred by time and a Bench of this Court, on 27th July 1935, held that it was not so barred. In our opinion that decision clinches the matter. Reliance has been placed however on a judgment of this Court delivered by Bennet and Verma JJ. in Case No. 1200 of 1935 on 1st December 1938 by which they dismissed a second appeal by the plaintiff Bohra Ram Chander on the ground that Darbari Lal or after him Champa Ram who purchased his rights were not entitled as proprietors to share in the mohal at any time prior to the deposit of Rs. 1655 under decree No. 31 of 1928 and therefore no suit for pre-emption could be brought on the basis of the sale of that property by Champa Ram in favour of Jugal Singh. The learned Judges have observed : 'The sale certificate of the auction sale is not produced, but in the absence of such sale certificate we must presume that what was sold by the auction sale was the rights of Darbari Lal in his decree No. 31 of 1928.'
6. We have however the sale certificate before us in this case which is printed at p. 47 of the printed book and what was sold was the zamindari share in village Nehrai consisting of 267 bighas 7 biswas and 2 biswansis together with Shamilat of 64 bighas and 3 biswansis and not the rights of Darbari Lal in the decree. We are thus sure that if this sale certificate were before the Hon'ble Judges in Case No. 1200 of 1935 their decision would have been otherwise. In any event, it is no longer necessary for the decision of this case to find out whether the deposit could be made after three years or not and a number of rulings referred to on that point are not of much use. In view of this finding, we would hold that Darbari Lal had a right to mortgage the property the possession of which was decreed in Suit No. 31 of 1928 and the mortgage was quite valid and good. The whole confusion was created by the fact that the interest under the decree No. 31 of 1928 was also mortgaged which entitled the decree-holder to recover costs as well as mesne profits. The purpose of mortgaging this interest evidently was that the mortgagee should be able to get possession of the property on payment of Rs. 1655 and should be able to set off mesne profits and costs against it.
7. There is absolutely no force in the other grounds raised. It has been fully proved from the evidence of Harcharan Lal, one of the marginal witnesses, that the mortgage was duly executed by Darbari Lal in the presence of the attesting witnesses. The consideration is also proved from the evidence of Damodar Das who was the scribe of the two pronotes which were paid off out of the mortgage money. Harcharan Lal further proved that Rs. 2415 were paid in cash before the Sub-Registrar. We have therefore no hesitation in holding that the mortgage was duly executed and was for consideration. It is idle for the defendant-appellant to contend that he was a bona fide purchaser for consideration without notice. It appears from the sale proclamation printed at p. 42 that this mortgage was notified at the time of the sale and the auction-purchaser must be deemed to have had full notice of the same. As the suit was brought within 12 years of the mortgage the learned Civil Judge rightly held it as not barred by time. It was proved from the evidence of Kanwal Kishore son of Lochan Singh plaintiff that he was not a creditor as defined under the Agriculturists' Relief Act and therefore the provisions of Sections 32 and 34, Agriculturists' Relief Act, did not apply to him. The plaintiff has already calculated interest at the rate given in the Agriculturists' Relief Act. It seems however from a perusal of the decree which was prepared subsequent to the judgment that it was not made clear that the rights and interest in decree No. 31 of 1928 together with the right to recover costs, possession and mesne profits awarded in the decree will not be sold. This will now be made 'clear and to this extent the contention of the appellant appears to be correct that the entire property mortgaged could not be sold. The result is that the appeal fails and is dismissed with costs. The decree of the learned Civil Judge is confirmed with certain corrections in the decree as indicated above. The appellant shall pay the costs of the contending respondents and bear his, own. The date for payment of the money is extended by six months from this date.
8. I agree with my brother Mathur J. that this appeal must fail. I want to say a few words about the two questions of law raised before us. Darbari Lal had brought a suit No. 31 of 1928, for possession of certain properties on the allegation that he was a reversionary heir to one Lala Hoti Lal who had died in the year 1869 and on the death of his widow Mt. Mul Kuer, Darbari Lal had become entitled to possession of the property. His claim was decreed on 17th November 1928 but the Court ordered that he would get possession of the property on payment of Rs. 1655-1-1. The Court, however, did not fix any time for such payment. Before paying the sum of Rs. 1655:1-1 Darbari Lal on 6th December 1928 executed a mortgage in favour of Lochan Singh. Lochan Singh has now brought this suit for sale on the basis of the said mortgage. After the mortgage, in execution of a simple money decree against him the rights of Darbari Lal in the mortgaged property were sold in auction subject to the mortgage and were purchased by one Champa Ram on 21st August 1929. Champa Ram sold the property to Jugal Singh on 12th October 1933. Jugal Singh after the purchase deposited in Court the amount of Rs. 1655-1-1. The judgment-debtors, however, filed objections that the deposit, not having been made within three years of the date of the decree, was time-barred. This Court on 27th July 1935 held in appeal that the deposit was not time-barred and overruled the objection. Jugal Singh has now raised the plea that the decree in favour of Darbari Lal was merely a conditional decree and before the deposit of Rs. 1655-1-1 Darbari Lal had no title to the property which he could validly mortgage under the law. Jugal Singh deposited the amount of Rs. 1655-1-1 on 3rd November 1933 and he has urged before us that even though his deposit dated 3rd November 1933 was accepted by the Court and he was allowed possession of the property yet it could not enure for the benefit of Lochan Singh, the mortgagee, and he pleads that Darbari Lal should have deposited the sum of Rs. 1655-1-1 within three years of 17th November 1928, the date of the decree, and he not having done so his title, whatever it was, came to an end and there are no rights of Darbari Lal left which the mortgagee can sell.
9. The learned Counsel for the appellant has argued that whatever rights of Darbari Lal may have been under the Hindu law as the next reversionary heir to the property his rights must now be defined by the decree in Suit No. 31 of 1928 and under the terms of the decree he could not be deemed to have any right in the property so long as he did not deposit the said amount of Rs. 1655-1-1. The contention of the learned Counsel for the appellant that the rights of Darbari Lal must now be defined by the decree in Suit No. 31 of 1928 is correct, but I do not agree with the contention that under the said decree Darbari Lal had no title to the property so long as he did not deposit the amount. To my mind, it mast be held that Darbari Lal was held to be entitled to the property but he could get possession of the property only on depositing the amount of Rs. 1655-1-1. So long as he did not deposit the amount he could not claim possession of the property, but he had a title which was transferable and in case Darbari Lal transferred the property the transferee would have the same rights in the property as Darbari Lal had, that is, the right to take possession of the property on deposit of the money. Even if the argument advanced by learned Counsel is accepted that Darbari Lal on the date of the mortgage had only his rights under the decree, I cannot see why Darbari, Lal could not mortgage the property, and in case he did make a mortgage of the property in excess of his rights the property would be liable to be sold under the mortgage if Darbari Lal later on acquired rights which he did not possess at the time of the mortgage on the principle of grant feeding the estoppel.
10. The property was sold to Champa Ram in an auction sale on 8th July 1929 subject to the mortgage and, to my mind, Champa Ram will have the same liability as Darbari Lal. Even the present defendant Jugal Singh purchased the property subject to the mortgage and with notice of the claims of Lochan Singh. Learned Counsel has placed before us the judgment of a Bench of this Court in Second Appeal No. 1200 of 1935 dated 1st December 1938. That suit had been filed to pre-emption the sale-deed dated 12th October 1933 under which Jugal Singh had purchased the property from Champa Ram. The suit for pre-emption was filed by Bohra Ram Chand, a cosharer in the village, who claimed that a share in the village having been sold, he had a right to pre-emption the same. This Court held that the sale was not pre-emptible under the Agra Pre-emption Act as no proprietary interest in the land was sold under the sale deed, but only the rights of Champa Ram to obtain proprietary interest in the property by depositing the sum of Rs. 1655-1-1 were sold. The case before us is not governed by the Agra Pre-emption Act, and it is, therefore, not necessary to consider whether the sale deed dated 12th October 1933 was or was not pre-emptible. It may be that in cases of pre-emption special considerations arise, but I am not prepared to hold that the zamindari property included in the mortgage dated 6th December 1928, is not now saleable because Darbari Lal had not deposited the sum of Rs. 1655-1-1 before the date of the mortgage. In another pre-emption case reported in Gaya Kurmi v. Ram Sahai Singh : AIR1931All405 a Bench of this Court held that a decree-holder, who could only get possession of the property on deposit of a certain sum fixed by the Court, has no right to pre-empt a sale which had taken place before the date of the deposit, as he cannot be deemed to be a cosharer in whom the property was vested before the deposit. For purposes of the law of pre-emption it may be that a person who is entitled to possession of the property may not be allowed to pre-empt a sale which had taken place before he had deposited the money. I have considerable' doubts about the correctness of the two decisions, but as I have already said the case before us has nothing to do with the law of pre-emption and I do not think we can apply the same considerations to the mortgage in suit executed by Darbari Lal. To my mind, the correct way of looking at the decree in Suit No. 31 of 1928 is that Darbari Lal must be deemed to have been declared the owner of the property but he had no right to claim possession so long as he did not fulfil the conditions imposed by the decree. In this view of the matter Darbari Lal was clearly capable of executing the mortgage of the property in suit.
11. This brings me to the next contention that the money should have been deposited within three years from the date of the decree, i.e., within three years from 17th November 1928. It was alleged that the money not having been deposited within three years, the decree became time barred and whatever right Darbari Lal may have had under the decree it came to an end. Darbari Lal having lost all rights under the decree, his mortgagee Lochan Singh could not now bring a suit for sale of the property included in the mortgage. I have already mentioned that Jugal Singh deposited the amount on 3rd November 1933, long after the expiry of three years. An objection was taken on behalf of the judgment-debtors of that suit that the deposit had been made beyond time and the matter came up in appeal to this Court. A Bench of this Court on 27th July 1935 held that the deposit was within time. After the said decision it must be now deemed that the deposit made by Jugal Singh was within time, and he should not be allowed to say that his deposit was beyond time so as to defeat the rights of the mortgagee specially when Jugal Singh had himself purchased the property subject to the mortgage. But even apart from that, I am not at all satisfied that when the Court does not fix any period within which the amount is to be deposited, the deposit must be made within three years from the date of the decree. To my mind, in such a case two views are possible. One view is that the deposit can be made within a period of twelve years from the date of the decree or within such other time as may be necessary for the judgment-debtor to acquire an independent title by adverse possession. The other view is that the deposit must be made within three years from the date of the decree, on the ground that when a Court fixes no time it must be deemed that the Court meant the decree-holder to deposit the amount forthwith and the decree-holder cannot extend the period of limitation for execution by not depositing the amount which he was bound to do under the decree.
12. Learned Counsel for the appellant has strongly urged that the deposit should have been made within three years from the date of the decree, and has relied on a ruling reported in Siri Narain Tewari v. Brij Narain Rai : AIR1931All326 in which Sen and Bennet JJ. held that the money could be deposited on the date of the decree, and therefore the deposit should have been made within three years from that date and applied Article 181, Limitation Act. In that case the decree was dated 28th August 1912 and the decree-holder was entitled to possession on payment of Rs. 2499-15-0 but no date was fixed for payment. The deposit was not made till 21st July 1928 and it was held that the deposit had not been made within time. Learned Counsel has also cited before us a single Judge decision of the Nagpur Chief Court reported in Dada v. Ganpatrao ('31) 18 A.I.R. 1931 Nag. 54 in which the learned Judge held that there was no obstacle to the enforcement of the decree on the day the decree was passed and the only condition necessary for the immediate enforcement of the decree was that the decree-holder should pay the sum of Rs. 875 and there was nothing in the decree to prevent that sum being paid forthwith. He, therefore, held that the decree should have been executed within three years and the deposit should have been made within that time and he applied the first part of Article 182, Limitation Act. A Bench of this Court, however, in a case reported in 24 ALL. 300 Chhedi v. Lalu ('02) 24 All. 300 in very similar circumstances held that in a case where a decree-holder was not entitled to execute the decree till he made the deposit the article applicable was not the first paragraph of Article 179, now equivalent to the first paragraph of Article 182, but Article 178 which is equivalent to Article 181.
13. If the Court when passing a conditional decree fixes a time for payment, there can be no manner of doubt that Article 182, Limitation Act, will not be applicable, and the article to be applied for execution of the decree is Article 181, Limitation Act, and the period of three years is to be calculated from the date of the deposit. The mere fact that the Court has not fixed any time for payment will not, to my mind, make Article 182 applicable. There is no reason why it should be deemed that the Court intended that the deposit must be made forthwith immediately after the Court pronounced the judgment. Article 181, Limitation Act, however, does not provide any period of limitation for a deposit. It is the residuary Article for applications and it is provided that such applications are to be made within three years when the right to apply accrues. In determining the question as to the period within which the money is to be deposited, in a case where a Court has passed a conditional decree for possession on deposit of a certain sum of money and has failed to fix any period for the deposit, neither Article 181 nor Article 182 is applicable, nor is there any article in the Limitation Act, which, to my mind, governs such deposits. The Court may be deemed to have intended that the money should be deposited within a reasonable time, but a decision to that effect will create a great deal of confusion. There may be considerable difference of opinion as to what is reasonable time for such a deposit, and it would lead to uncertainty which is not desirable. I am, therefore, inclined to the view that in such cases a decree-holder is entitled to deposit the money within a period of twelve years or within such period which falls short of the period necessary for the judgment-debtor to acquire an independent title to the property. I am, therefore, of opinion that the deposit made by Jugal Singh was within time and I have already expressed my opinion that even if it was not so, it will make no difference in this case.
14. In a judgment delivered by the late Sir Promoda Charan Banerji reported in 17 A.L.J. 841 Mt. Rukmina Kaur v. Sheo Dat Rai ('19) 6 A.I.R. 1919 All. 224 it was held by his Lordship sitting with Rafiq J. that a deposit made on 15th June 1915 was not barred by limitation when the decree was dated 22nd January 1894. The application for execution was made on 29th June 1916. It was further held that Article 182, Limitation Act, applied only to eases in which a decree was capable of execution on the date on which it was passed except in circumstances mentioned in some of the special clauses to that article. Their Lordships held that Article 181 was applicable and the limitation would run from the date on which the right to apply accrued and the right to apply accrued on the date of deposit. The facts of that case were peculiar inasmuch as the decree provided that the decree-holder may pay the sum of Rs. 750 in the month of Jeth of any year, and their Lordships held that the decree-holder had thus the right to deposit the money in any year he liked. I am, therefore, of the opinion that this case is distinguishable and does not go against the view I have expressed above.