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Saran Singh Vs. L. Miththan Lal - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1946All174
AppellantSaran Singh
RespondentL. Miththan Lal
Excerpt:
- - this case is again clearly distinguishable from the class of case with which we are dealing in this full bench, in which the whole of the amount of the prior mortgage had been left in the hands of the second mortgagee......first mortgagee was naturally no party to this transaction. in 1924 the mortgagor sold part of his equity of redemption in the mortgaged property and as a result of this sale (as affected by a compromise of certain proceedings which related to it) the position in 1925 was that the equity of redemption in 75 bighas expectant on the mortgages of 1915 and 1917 had passed to certain purchasers, while the equity of redemption in the remaining 61 bighas remained vested in the mortgagor.2. throughout this time the first mortgage of 1915 remained undischarged by the second mortgagee; and in 1927 the first mortgagee brought the present suit for sale. as between the first mortgagee on the one hand and the mortgagor and the second mortgagee on the other hand, there was, of course, no answer to the.....
Judgment:

Iqbal Ahmed, C.J.

1. We shall deal first with this second appeal referred to the Full Bench, since its decision will enable the other two to be disposed of without difficulty. In 1915 a simple mortgage was created by a mortgagor, Mahipal Singh, over 136 bighas of land to secure repayment of a principal sum of Rs. 400 and interest. In 1917 the mortgagor created a second mortgage over the same property to secure repayment of Rs. 7000 and interest and at the same time, by agreement with the second mortgagee, left in his hands a sum of Rs. 436 out of the second mortgage consideration for the express purpose of the first mortgage and interest thereon up to that date being discharged by the second mortgagee. The first mortgagee was naturally no party to this transaction. In 1924 the mortgagor sold part of his equity of redemption in the mortgaged property and as a result of this sale (as affected by a compromise of certain proceedings which related to it) the position in 1925 was that the equity of redemption in 75 bighas expectant on the mortgages of 1915 and 1917 had passed to certain purchasers, while the equity of redemption in the remaining 61 bighas remained vested in the mortgagor.

2. Throughout this time the first mortgage of 1915 remained undischarged by the second mortgagee; and in 1927 the first mortgagee brought the present suit for sale. As between the first mortgagee on the one hand and the mortgagor and the second mortgagee on the other hand, there was, of course, no answer to the suit, and on 29th October 1927 the Court passed a decree for sale in respect of Rs. 5816 in favour of the first mortgagee. This figure was a very large one but we are told that it represented the then amount of principal and interest due on the 1915 mortgage. The actual figure is immaterial. The next step was that in 1940 the first mortgagee applied for execution of his decree; and conversely the mortgagor applied as an agriculturist for amendment of the decree of 1927 under Section 8, U.P. Debt Redemption Act, 1940. The question which immediately arose was whether, having regard to the definition of a 'loan' contained in Section 2(9) of the Act, the sum secured by the first mortgage of 1914 could any longer be regarded as a 'loan,' once the second mortgagee had in 1917, as between himself and the mortgagor, retained the sum of Rs. 436 out of the advance made to the mortgagor on the second mortgage and thereby, as between himself and the mortgagor, assumed the responsibility as from that date for paying it to the first mortgagee together with interest thenceforth accruing on it. The material part of the definition of a loan contained in para. 2(9), U.P. Debt Redemption Act is:

'Loan' means an advance in cash or kind made before the first day of June 1940, recoverable from an agriculturist or a workman or from any such person and other persons jointly or from the property of an agriculturist or workman and includes any transaction which in substance amounts to such advance, but does not include an advance the liability for the repayment of which has, by a contract with the borrower or his heir or successor or by sale in execution of a decree been transferred to another person....

3. No one would suggest that, in the absence either of payment to, or a release by the first mortgagee himself, his right of suit on the 1915 mortgage against the mortgagor had been extinguished nor, indeed, that the first mortgagee's, remedy on the still outstanding first mortgage of 1915 lay against anyone but the original mortgagor. In that sense, therefore, it goes without saying that the mortgagor (apart from any possible question of limitation) remained the mortgagor of the first mortgagee on the 1915 mortgage. That, however, is not exactly the point we have to face. Our task is to construe Section 2(9), U.P. Debt Redemption Act, and to inquire whether, on the true construction of the definition of a loan contained in it, the 'liability for the repayment' of the advance (i.e., of the advance of the Rs. 400) had been 'transferred to another person' so as to take it out of the ambit of the Act. The material words are:

Loan means an advance...recoverable from an agriculturist...or from the property of an agriculturist...but does not include an advance the liability for the repayment o which has, by a contract with the borrower or his heir on successor or by sale in execution...been transferred to another person....

We have to remember that the purpose of the U.P. Debt Redemption Act was to benefit agriculturists, and none others. The question is whether the words 'recoverable' and 'liability for repayment' refer to the strictly formal right of recovery or right to enforce repayment which in the circumstances of the case exists only between the first mortgagee and the mortgagor, or whether they should be read in a wider sense so as to refer to the right to recover and the liability to repay in the sense of the ultimate incidence of the burden of the mortgage debt. In our view, both on the construction of the words of the definition itself and on a consideration of its purpose, it is the latter and wider construction that is the right one. In a case in which a mortgagor, as between himself and a third party, whether a second mortgagee or a purchaser of the equity, has left a sufficient part of the mortgage or purchase money in the hands of a second mortgagee or purchaser he has certainly, as between them, transferred the entire liability for the mortgage, in the sense of the ultimate burden of bearing it. And, in this respect, we can see no difference between a pecuniary burden payable out of the pocket and one payable out of land, since assessed in rupees the burden is exactly the same. The 'repayment' of a loan is a repayment of 'money.' And the liability to repay is a liability to repay money, since 'repayment' of money connotes relations in debt. When we find the Act speaking, therefore, of a 'liability for repayment,' we think it more naturally refers to the liability of the person (who in ninety-nine cases out of a hundred would be the owner of the equity of redemption in the land) who is under the obligation for the time being of bearing the money burden attached to the mortgage which has to be discharged in order to free the land from it. And we think that the words 'recoverable from an agriculturist' are wholly consistent with this view since they at least as readily connote the personal and real incidence of the money obligation for the time being as the mere liability to be sued on the mortgage. And, in further support of this view, we attach some weight to the words 'by a contract with the borrower....'

4. It is significant that all mention of the lender (i.e. the mortgagee), who is the only person who could release the formal legal obligation on the original mortgage, is omitted. This appears to us to show that what the Legislature had in mind was that it is the incidence for the time being of the loan - an incidence which, of course, the borrower alone was capable of changing - that was to be the test of whether, it remained a loan within the meaning of the Act or not. In this case there can be no doubt whatever that, as between the mortgagor and the second mortgagee, the effect of the 1917 transaction was to transfer the whole of the burden of the mortgage debt, past and future, to the second mortgagee. The mortgagor ceased to be beneficially interested in it, except possibly as a mere vehicle of being sued and in that case he had an immediate right over against his second mortgagee. It is neither here nor there that this right of indemnity might have proved worthless in practice, since we have to construe the Act, not in the light of untoward contingencies, but on the footing of the legal position of the parties. Nor do we think that the position is affected in any way by the judgment of the Full Bench case in this Court in Naima Khatun v. Basant Singh : AIR1934All406 to which we have been referred, since the only criterion we feel it proper to adopt for this purpose is the one of where the ultimate burden lies.

5. The only question remaining open is the point with which we have been pressed by Mr. C.B. Agarwala that the circumstance that the mortgagor himself remained the beneficial owner of part of the equity in the property is itself enough to fix him with a sufficient continuing 'liability for repayment' of the loan to make it impossible to say that it has been transferred - or, at least, wholly transferred. But on the view we have taken of the true construction of the definition we do not think that this point really arises. It represents a confusion of ideas between the liability of the land to answer the security and the liability of a person to repay the loan. The security and the liability to repay are two different things and there is nothing in the least strange in the equity of redemption in the security remaining in one hand, while the liability to repay the debt vests in another. We do not, therefore, think that the circumstance that the mortgagor retained the equity of redemption in part of the property in 1924 affects the view we have taken.

6. This point has given rise recently to a number of decisions in this Court, some of which may perhaps be taken to be contrary to the view we have expressed above. In Badri Das v. Qabul Chand ('43) 1943 A.L.W. 288 Plowden, J. thought that, whereas the transfer by a mortgagor of his entire equity of redemption might effect a transfer within the meaning of Section 2(9) of the Act, the transfer of part of the equity would not. As we have pointed out above, it is not, we think, the transfer of the equity in the land that is the determining factor, but the transfer of the 'liability for repayment.' The case before Plowden J. is, however, to be distinguished from ours since, as reported, there was no such feature present as in this one, that the whole of the motgage money and interest had been left in the hands of transferee, whereby he had thenceforth become solely responsible, as between himself and the mortgagor, for the mortgage debt. In another case one of us sitting with Sinha J. in Shiam Sundar v. Data Ram reported in : AIR1946All147 dealt with a case in which the equity of redemption had been mortgaged, but without any money being left in the hands of the subsequent mortgagee for the discharge of the first mortgage. This case is again clearly distinguishable from the class of case with which we are dealing in this Full Bench, in which the whole of the amount of the prior mortgage had been left in the hands of the second mortgagee. On the other hand, Sinha J. sitting alone very shortly afterwards in revision in a case in which on a transfer by a mortgagor of part of the mortgaged property the mortgage money had been left in the hands of the transferee, expressed the view that it was 'obvious that after the transfer of the liability, the mortgagors ceased to be entitled to the benefit of this Act by reason of the provisions of Section 2, Clause (9)' Dau Sahai v. Bhagwan Das Exn. Second Appeal No. 739 of 1943 unreported. But in a Kishun Bahadur v. Badri Narain First Appeal No. 47 of 1942 two learned Judges constituting a Bench of the Court appear to have taken a different view to the one we have expressed above. They thought that, in a case in which part only of the equity of redemption had been transferred, notwithstanding that the mortgagor might have arranged with his transferee that he would pay the entire debt, the mortgagor still remained 'liable for repayment' of the mortgage-debt because part of the equity of redemption still remained in his hands and the mortgagee could still have recourse to it. As we have explained above, we think that this overlooks that a right to have recourse to the property is one thing and a 'liability for repayment' is another thing altogether. With deference we think that the decision in this case cannot be taken to be correct. That case has since been followed by Mathur J. in Suraj Narain v. Ganga Tewari Second Appeal No. 2315 of 1943. The result of this Full Bench reference must be that in our opinion, in a case in which a mortgagor parts with the whole or part of his equity of redemption in the mortgaged property, at the same time leaving in the hands of a non-agriculturist transferee or second mortgagee sufficient (sic, amount) to satisfy the outstanding mortgage up to that date, there is a transfer of the 'liability for repayment...by contract with the borrower' within the meaning of Section 2(9), U.P. Debt Redemption Act, and as from that moment the mortgage debt ceases to be a 'loan' within the meaning of the Act. This construction of the section follows the view of the Oudh Chief Court in Muneshwar Bux Singh v. Jung Bahadur Singh ('45) 32 A.I.R. 1945 Oudh 144 with which we agree. The Second Appeal No. 875 of 1943 must accordingly be dismissed with costs.

7. Civil Revision No. 285 of 1941 - In this case, according to the judgment of the learned Munsif of Mahaban at Muttra, the whole mortgage-money was not left with the transferee. It appears, therefore, that the mortgagor had not been relieved of his 'liability for payment' of part at least of the mortgage-money. The Act makes no provision for any apportionment in the case of a partial transfer of liability and we must take it, therefore, that a loan only ceases to be a loan when the liability to repay it has been wholly transferred by contract with the borrower. We, therefore, dismiss this revision with costs.

8. Civil Revision No. 247 of 1941 - This revision is governed by the view of the construction of Section 2(9) of the Act expressed in second Appeal No. 875 of 1943 above. The liability for repayment of the loan, as so construed, was wholly transferred. The revision will accordingly be allowed with costs and the figure of RS. 1047 will again be substituted in the original decree, with such other consequential amendments as are necessary.


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