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W.F. Legge Vs. Balkishen Das and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All434
AppellantW.F. Legge
RespondentBalkishen Das and ors.
Excerpt:
mortgage by conditional sale - sale with a right of repurchase--conditional sale effected by two contemporaneous deeds--evidence dehors the documents admissible to show what the transaction really was. - - that evidence dehors the documents is admissible to prove the intention is well established by numerous authorities, of which we need only refer to alderson v. on this point we have satisfied ourselves by a reference to the records of the case. he was introduced to hari das and balkishan das, two rich bankers of benares. hari das then said that he would like to see the estate first of all. during this period of three years those persons were to enjoy the usufruct of the property, which, according to balkishan das, (see p. the fact of his making the statements to which we have referred.....banerji and aikman, jj.1. the plaintiff in the suit, out of which this appeal has arisen was the owner of an estate, called taluqa pataila, in the district of jaunpur, which he obtained from the government in 1861, as a reward for services done during the mutiny. he was also an indigo planter, carrying on a factory called the basharatpur concern. in 1869 he mortgaged the taluqa to mr. w. smyth for rs. 1,30,000. in order to discharge the debt due to mr. smyth, he, on the 8th of april 1872, executed two deeds in favour of balkishan das, defendant, and his brother hari das, the deceased father of the other defendants. one of these was a deed of simple mortgage for rs. 1,25,000, in which the taluqa pataila was mortgaged, and the other was an instrument called a deed of estimate, securing a.....
Judgment:

Banerji and Aikman, JJ.

1. The plaintiff in the suit, out of which this appeal has arisen was the owner of an estate, called Taluqa Pataila, in the district of Jaunpur, which he obtained from the Government in 1861, as a reward for services done during the mutiny. He was also an indigo planter, carrying on a factory called the Basharatpur concern. In 1869 he mortgaged the Taluqa to Mr. W. Smyth for Rs. 1,30,000. In order to discharge the debt due to Mr. Smyth, he, on the 8th of April 1872, executed two deeds in favour of Balkishan Das, defendant, and his brother Hari Das, the deceased father of the other defendants. One of these was a deed of simple mortgage for Rs. 1,25,000, in which the Taluqa Pataila was mortgaged, and the other was an instrument called a deed of estimate, securing a sum of Rs. 60,000. A part of this amount was appropriated to the discharge of the mortgage in favour of Smyth, and the remainder was an advance taken for the purpose of manufacturing indigo. In the deed last mentioned certain factories and houses were hypothecated. On the 4th of February, 1873, two documents were executed which have given rise to the present litigation. One of them was a deed of absolute sale of Taluqa Pataila executed by the plaintiff in favour of Balkishan Das and Hari Das for a consideration of Rs. 1,50,000. The other was a deed of agreement (iqrarnama) executed by Balkishan Das and Hari Das in favour of the plaintiff, Mr. Legge, in which they covenanted that if the vendor paid on the 1st of March 1876, the sum of Rs. 1,65,000 in a lump sum, together with any amount which might remain due on account of advances annually made for the purpose of carrying on the Basharatpur indigo factory, the property conveyed by the deed of sale would be by them reconvened to Mr. Legge. It is alleged on behelf of the plaintiff that these two deeds constitute a mortgage by conditional sale which the plaintiff is entitled to redeem, and the present suit was brought to redeem that mortgage.

2. On the other hand the defendants' case is that the transaction between the parties was one of absolute sale with a right of repurchase on or before the 1st of March 1876, and that the plaintiff, not having exercised the right within the time fixed, is no longer entitled to get back the property. The simple issue, therefore, is whether the transaction evidenced by the two deeds of the 4th of February 1873, Was, as alleged by the plaintiff, a mortgage by conditional sale, or, as alleged by the defendants, an absolute sale with a limited right of repurchase. The Court below has held that the transaction was one of mortgage and has granted to the plaintiff a decree for redemption, conditional upon the payment of certain amounts to which we shall refer hereafter. The defendants have preferred this appeal, and the plaintiff has filed objections under Section 564 of the Code of Civil Procedure.

3. There can be no doubt that the deed executed by the plaintiff on the 4th of February 1873, is on the face of it a deed of absolute sale. But that circumstance alone would not preclude the Court from considering whether the transaction was in reality a mortgage by conditional sale. A mortgage by conditional sale is thus defined in Clause (c) of Section 58 of Act No. IV of 1882: 'Where the mortgagor ostensibly sells the mortgaged property, on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or, on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale.' A transaction, therefore, which on the face of it is a sale, may be in reality a mortgage by conditional sale, if it comes within the above definition. In order to determine whether the transaction is a mortgage, or sale with a condition of repurchase, what we have to look to is the intention of the parties. This intention may be gathered from the terms of the deeds, or from the surrounding circumstances, or from both. That evidence dehors the documents is admissible to prove the intention is well established by numerous authorities, of which we need only refer to Alderson v. White, 2 De G. and J. 105, Lincoln v. Wright, 4 De G. and J. 16, and to the decision of their Lordships of the Privy Council in the case of Bhagwon Sahai v. Bhagwan Din L.R. 17 I.A. 98 S.C. I.L.R. 12 All. 387. In that case, as in the present, there were two documents of even date, one being a deed of absolute sale, the other being a contract by the vendee to give the vendor a right to repurchase on payment of the sale price within ten years. Their Lordships held on a construction of those documents that the transaction between the parties was not one of mortgage, but was one of absolute sale with a right to repurchase. The effect of that ruling, in our opinion, is that the mere fact of a deed of absolute sale being accompanied by another deed giving to the vendor a right of repurchase would not for that reason alone constitute the transaction one of mortgage. Still, as was observed in the judgment of this Court in Ali Ahmad v. Rahmat-ullah I.L.R. 14 All. 195, in which the above ruling was considered, this Court would be bound to follow that ruling in any case in which the circumstances are similar.

4. We have, therefore, to consider whether the circumstances of this case are similar to those of the case of Bhagwan Sahai v. Bhagwan Din referred to above. From the pleadings in that case it appears that the only defence raised in it was whether the deed conferring on the vendor the right of repurchase was a genuine document. With the exception of the documents themselves there was no evidence to show the intention of the contracting parties in regard to the transaction. On this point we have satisfied ourselves by a reference to the records of the case. This being so, their Lordships could not but hold that the transaction was one of sale with a right of repurchase.

5. Before proceeding to consider the nature of the transaction entered into by the parties on the 4th of February 1873, we may observe that that transaction took place long before the Transfer of Property Act of 1882 was enacted, and that, according to the plaintiff, the transaction was what is known in these Provinces as a bai-bil-wafa mortgage, which is a mortgage by conditional sale. As was observed in Alt Ahmad v. Rahmat-ullah I.L.R. 14 All. 95, this form of mortgage 'was introduced to enable Muhammadans, contrary to the precept of the Muhammadan law against lending money at interest to lend money at interest and to obtain security for the repayment of the principal and interest.' It was also observed that a mortgage transaction of this description was understood by the people of these Provinces' as being capable of being effected in different ways, as for instance, by a deed which purported to assign the property absolutely, but which contained a stipulation for a right of repurchase, or by two contemporaneous deeds, one of which purported to effect an absolute and unconditional sale, and the other of which was an agreement that the apparent vendor should have a right of repurchase.' See also the observations of Turner, C.J. on the same subject in Rama Sami Sastrigal v. Samiyappanayakan I.L.R. 4 Mad. 179, at pp. 183 and 184. We may add, as was also observed in Ali Ahmad v. Rahmat-ullah, that in this part of India Muhammadan forms of conveyancing were followed for many centuries and are still not uncommon.

6. We may also remark that in our experience an absolute sale with a right of repurchase is very rare in these Provinces, and that, before the decision of their Lordships of the Privy Council in Bhagwan Sahai v. Bhagwan Din, the usual conception was that where there were two contemporaneous deeds, one of which was a deed of absolute sale and the other an agreement conferring on the ostensible vendor a right of repurchase, the transaction constituted a bai-bil-wafa or mortgage by conditional sale. In our opinion it is necessary to bear these facts in mind in considering what the intention of the contracting parties was when they entered into the transaction.

7. As we have stated above, Taluqa Pataila, the property which the plaintiff seeks to redeem in this suit, was mortgaged by him to Mr. W. Smyth for Rs. 1,30,000 in 1869. The plaintiff was unable to discharge that mortgage, and in order to raise funds, not only for repaying the debt due to Mr. Smyth, but also for carrying on his indigo concern, the plaintiff was on the look-out for a banker. He was introduced to Hari Das and Balkishan Das, two rich bankers of Benares. He borrowed from them Rs. 1,85,000 under the two deeds of the 8th of April 1872, to which we have referred above, discharged the mortgage in favour of Mr. Smyth, and allowed Rs. 40,000 out of the amount of the instrument called the deed of estimate to remain in the hands of the creditors to be drawn on from time to time for carrying on the indigo concern. It was evidently in the contemplation of the parties that in future years similar estimates would be prepared as to the requirements of the plaintiff for his indigo business and advances taken from Hari Das and Balkishan Das to meet those requirements, and that the amounts advanced would be repaid out of the proceeds of the sale of indigo. We have referred to this fact as it has a considerable bearing on the terms of the agreement of the 4th of February 1873. The circumstances which, according to the plaintiff, led to the execution of the two deeds of that date were these. In January 1873, the sum of Rs. 1,90,000 was due to Hari Das and Balkishan Das by the plaintiff and his partner, one De Momet, on account of principal and interest due upon the instruments of the 8th of April, 1872. The plaintiff asked Hari Das to make him further advances. He refused on the ground that De Momet was an unlucky man, but agreed to help the plaintiff if De Momet could be got rid of. De Momet agreed to retire, and executed two deeds in favour of the plaintiff on the 14th of January 1873, and withdrew from the partnership. The plaintiff states that he informed Hari Das of this and met him at Benares at the house of Mr. Smyth. We may remark in passing that at the period referred to Balkishan Das was very young, and Hari Das was the leading member of the firm, which belonged to the two brothers. What next happened we will state in the plaintiff's own words: 'Mr. Smyth suggested that Hari Das would reduce the interest if he were put in possession of Pataila. Hari Das then said that he would like to see the estate first of all. A few days afterwards Hari Das saw the estate and I met him at the Katahan factory. Hari Das approved of the estate and asked me to sell it out and out. I declined and refused to sell on any account. After this Hari Das agreed to take possession of Pataila and said that I should execute a bai-bil-wafa mortgage with possession. The exact terms were not then settled. He was anxious to go away, and said he would send me a draft from Benares. He subsequently sent me the draft * * *. There were two drafts. I objected to the form of the document, which seemed to me to be a sale. Hari Das then said that with the iqrarnama it would be a bai-bil-wafa mortgage, and that this was the ordinary form of a mortgage with possession. I then consulted Mr. Man (a pleader, who was putting up in the same house of Mr. Nickels). Mr. Man told me that the two documents made a bai-bil-wafa, but I was to be sure that the iqrarnama was to be executed at the same time as the other deed. The terms settled were that Rs. 1,50,000 were to be lent on the taluqa, the profits to go for interest, and I was to pay Rs. 15,000 extra, as Hari Das said this was to protect him against loss.' If the above statement be true, there can be no doubt that the contracting parties intended the transaction to be one of a bai-bil-wafa mortgage, that is, of a mortgage by conditional sale.

8. Now let us see whether the terms of the deed itself afford any evidence of such intention. Those terms, as translated and printed at p. 21 of the appellant's paper book, are as follows: 'We the executants, therefore, of our own free will and accord, covenant and declare that if the said vendor pays on the 1st of March 1876, the amount of Rs. 1,65,000 in a lump sum, we shall sell to the said vendor the whole of the said ilaqa sold, as it exists at present, for the said amount of Rs. 1,65,000, and we shall cause everything connected with mutation of names, &c;, to be done; neither we nor our heirs shall have any objection thereto. If we or our heirs raise any objections to receive the money or relinquish the property, the vendor shall be competent to deposit the said amount in cash in the Government treasury, by virtue of this agreement, and obtain possession of the ilaqa, we shall have no sort of objection to it. It has further been stipulated between us, the executants and the vendor, that the latter would also have to pay, along with this amount, whatever money may be due to us by the vendor at the time, in the event of additions and alterations being made annually with our consent in the amount of estimate of the concern of the Basharatpur factory, and the sahib shall not be competent to effect a sale (sic. repurchase) until the payment of the estimate money relating to the factories of the Basharatpur concern. We shall recover from the vendor any amount of arrears that may be due to us by the tenants by making an assignment thereof in favour of the vendor, and after the expiry of the 1st of March 1876, the said vendor shall not be competent either to pay the money or to make the purchase, and the conditions of this deed of agreement shall be deemed to be null and void.'

9. The first clause to which we wish to refer is that which provides that in the event of the refusal of Hari Das and Balkishan Das or their heirs to receive the amount, upon the payment of which the property was to be reconveyed, the plaintiff would be competent to deposit that amount in the Government Treasury. Regulation I of 1798, which is entitled 'A regulation to prevent fraud and injustice in conditional sales of land under deeds of bai-bil-wafa or other deeds of the same nature,' provides in its second section that a borrower of money under a deed of bai-bil-wafa or other deed of conditional sale who may be desirous to redeem his land may tender to the lender the amount due to him or deposit that amount 'in the dewany adawlut of the city or zila in which the land may be situated.' There was no other authority sanctioning the deposit of money of this description in a Government Treasury. It seems to us, therefore, that the provision in the deed as to the deposit in the Government Treasury of the money payable by the plaintiff evidently referred to the deposit which could be made under Regulation I of 1798, and this circumstance, to our minds, strongly indicates that the parties contemplated the transaction to be one of loan secured by a mortgage. The stipulation as to payment into the Government Treasury in the event of the vendees refusing to receive the money would, as the learned Counsel for the appellants was forced to admit, be meaningless if the agreement was merely a promise by the vendees to resell the property on certain terms, as in such a case no Government Treasury would receive the money; whereas, if it were a mortgage, the money would, if the mortgagees refused to take it, be lodged in the Government Treasury through the medium of the Civil Court.

10. A similar indication is afforded by the next clause in the deed, which provides that upon payment of a lump sum of Rs. 1,65,000, in addition to other amounts, within three years, a resale could be obtained. The amount of consideration for the sale-deed executed by the plaintiffs was, as we have said, Rs. 1,50,000. It is not likely that the value of the property would have increased by Rs. 15,000 at the end of three years. That amount was therefore to be paid to Hari Das and Balkishan Das for the use of Rs. 1,50,000 for three years, that is, at the rate of Rs. 5,000 per annum. During this period of three years those persons were to enjoy the usufruct of the property, which, according to Balkishan Das, (see p. 33 of the appellants' book) amounted to about Rs. 10,000 a year, so that they were to obtain during the three years Rs. 15,000 a year,--a sum which exactly represents the interest on Rs. 1,50,000 at the rate of 10 per cent, per annum. It seems to us, therefore, that the payment of the additional sum of Rs. 15,000 was stipulated for in order to secure to Hari Das and Balkishan Das interest on the Rs. 15,000 at 10 per cent, per annum. And this circumstance is to our minds a clear indication that the transaction was one of a loan and not of an out and out purchase.

11. There is yet another provision in the deed which indicates the real nature of the transaction. It is to the effect that, in order to entitle the plaintiff to obtain a reconveyance of the property, he was to pay, along with the Rs. 1,65,000 aforesaid, whatever sums might be found to be due on account of the estimate being altered and renewed from year to year by mutual consent. According to this provision, which has not been very accurately translated, the plaintiff was to pay, not only the Rs. 1,50,000, the consideration-money, for the so-called sale, not only an additional sum of Rs. 15,000 on account of what we consider to be interest, not only the amount which might be due on account of advances made for carrying on the indigo concern of the plaintiff, but also the balance of any future advances that might be made for the same purpose.

12. The deed thus secured repayment not only of past advances, but also of advances to be made in the future. We find that on the 6th of April 1873, that is, subsequently to the date of the deed in question, the plaintiff executed in favour of Hari Das and Balkishan Das a deed of estimate for carrying on his indigo concern, for the sum of Rs. 75,000. It appears from a deed executed by the plaintiff on the 3rd of March 1874, that Rs. 70,546-14-3 was due upon the deed of the 6th of April, 1873, up to the 25th of January 1874, and that by the deed of the 3rd of March 1874, a further advance was taken of Rs. 30,000. For this total sum of Rs. 1,00,546-14-3 the only securities held by Hari Das and Balkishan Das were Rs. 8,000 agreed to be paid on account of interest by Kelly & Co. of Calcutta; Rs. 5,000 which Mr. Nickels undertook to pay; and factories and bungalows which were subsequently purchased by Hari Das and Balkishan Das themselves for Rs. 66,000. There was still a sum of Rs. 21,546-14-6 and interest thereon, which would, save for the precarious out-turn of indigo, remain unsecured, unless, as has been urged with much force on behalf of the plaintiff, the security for this sum was the property now in question. It would thus appear that Hari Das and Balkishan Das themselves looked to the Pataila property as security for future advances, and this they could not have done had the property been absolutely sold to them. We are therefore of opinion that the iqrarnama of the 4th of February 1873, itself affords intrinsic evidence showing that the transaction was intended by the contracting parties to be one of mortgage and not an absolute sale with a right of repurchase.

13. There are many extraneous circumstances which we think lead to the same conclusion. The iqrarnama of the 4th of February 1873, was stamped as a declaration of trust and not as agreement, and this shows that the parties did not understand it to be an agreement to re-sell. Another circumstance is the absence of a motive for the plaintiff to part absolutely with the most valuable portion of the property he possessed. It is clear that he was anxious to continue his indigo concern, and for that purpose he was in need of funds, which he could raise without difficulty if he retained in his hands the equity of redemption of the property in question. It is not likely, therefore, that he entered into a contract of the nature alleged by the defendants. A third circumstance is the form adopted--a form commonly used in these Provinces to represent a bai-bil-wafa mortgage. A fourth circumstance is the paucity of instances in this part of the country of absolute sales with an option of repurchase, which renders it unlikely that the parties entered into a transaction of that description almost unknown in these Provinces. A fifth, and by no means an unimportant, circumstance is the value of the property. Taking the figures given by Balkishan Das (see p. 33 of the appellant's book) the income from the estate, exclusive of rent in kind, was, in 1873, Rs. 17,299-3-0. It appears from the mortgage deed of the 8th of April 1872, that the revenue was Rs. 6,506-10-0. The profits therefore amounted to at least Rs. 10,792-9-0 per annum. Whilst it is asserted on behalf of the defendants that the market value of such property is 16 years' purchase, it has been shown on behalf of the plaintiff that it varies from 22 to 25 years' purchase. As the property is situated in a permanently settled district, probabilities are in favour of the valuation alleged on behalf of the plaintiff. So that the property was worth more than 2 lakhs of rupees, and the consideration for the alleged sale was inadequate. Although, as Mr. Gonlan argues, this inadequacy of consideration may not be a conclusive test, it is certainly, in our opinion, one of the tests by which the real nature of the transaction may be determined. A sixth circumstance is the existence of the relation of debtor and creditor between the parties previously to the date of the transaction in question, and this circumstance renders it probable that the same relation was continued.

14. We have thus from the terms of the deed itself and from the surrounding circumstances almost all the criteria by which, according to Butler, as quoted in Bapaji Apaji v. Senavaraji Marvadi I.L.R. 2 Bom. 231, at pp. 244, and 245, it may be judged whether the transaction was intended to be a mortgage by conditional sale or an absolute sale with an option of repurchase. We agree with Westropp, C.J., that the tests enumerated by Mr. Butler are not the only tests, and we are of opinion that there may be many other circumstances, such as exist in this sase, which indicate the true character of the transaction.

15. It is true that one criterion, according to the English authorities, for deciding whether the transaction is a mortgage or not is the presence or absence of a right in the grantor to recover the amount on payment of which the property is to be reconveyed, and this test was applied by the Bombay High Court in the case cited above. We are, however, of opinion that this test cannot be applied to the case of bai-bil-wafa mortgages which obtain in these Provinces and are unknown in the presidency of Bombay. In the case of such mortgages, which are mortgages by conditional sale, the mortgagee has no personal remedy against the mortgagor for the mortgage money, and his only remedy is a decree for foreclosure (see Section 87 of Act No. IV of 1882), and therefore the test referred to above cannot in these Provinces enable a Court to decide as to the character of the transaction (see Tagore Law Lectures on Mortgage by Dr. Rashbehary Ghose, 2nd edition, p. 199). For the above reason the rulings of the Bombay High Court relied upon by the learned Counsel for the appellants are distinguishable from the present case. The decision of this Court in Bkup Kuar v. Muhammadi Begam I.L.R. 6 All. 37, and of the Madras High Court in Venkappa Chetti v. Akku 7 Mad. H.C. Rep. 219, also relied upon by the learned Counsel, have no application, as the two deeds in question in those cases were not of contemporaneous date.

16. Turning now to the oral evidence in this case, we have the evidence of the plaintiff himself which we have quoted at length in an earlier part of this judgment. The plaintiff, Mr. Legge, is an old man, seventy-five years of age, and his statements on this point are borne out in important particulars. Moreover, it is not in the present suit that he has for the first time asserted that the transaction into which he entered with regard to the Pataila estate was a mortgage by conditional sale and not an absolute sale. On the 26th of May 1876, only about three months after the date on which, according to the defendants, he could have exercised his option of repurchase, he stated in a deposition given by him in a suit brought against him by Hari Das and Balkishan Das that he had made a conditional sale of the estate in favour of those persons, and he reiterated the same statement in the written statement filed by him in that case (see pp. 28 and 29 of the respondent's book). It is true that no issue arose in that case as to the nature of the transaction now in question, but as the statement was made it would in all probability have been traversed by Hari Das and Balkishan Das and would not have been allowed to go unchallenged had it been absolutely untrue. We cannot suppose that so far, back as 1876, when the plaintiff had no immediate prospect of being able to claim the property, he made an untrue statement in order to make evidence for a suit for redemption which he might possibly bring in the distant future. The fact of his making the statements to which we have referred affords strong corroboration to his present allegation that the transaction was a mortgage. That allegation is further corroborated by Mr. Man, a vakil of this Court, whom the plaintiff says he consulted at the time. Mr. Man is a marginal witness to the iqrarnama of the 4th of February 1873, and there can be no doubt as to his presence at the time of its execution. He has sworn that Mr. Legge, the plaintiff, had a conversation with him about the transaction in question, that 'Mr. Legge did not wish to make an out and out sale of the estate, and on my advice an iqrarnama was drawn up, the effect of which would be, as I told Mr. Legge, to enable him to get back his estate and make the transaction to be a bai-bil-wafa (mortgage by conditional sale).' He added: 'At the time of execution Hari Das made no objection as far as I remember. Had he objected I would not have signed the deed, nor would Hari Das have signed had he objected.' Mr. Man is a perfectly disinterested witness, and we do not see the slightest reason to question the truth of what he has stated. His evidence leaves no room for doubt that the parties intended the transaction to be one of mortgage and the two deeds now in question were drawn up under his advice for the purpose of evidencing a contract of mortgage by conditional sale and not a contract of sale with an option of repurchase.

17. Against this evidence, which in our opinion is of very great value, we have the statements, of Balkishan Das, the defendant, and of two of his servants, Dwarka Parsad and Chunnu Lal. Balkishan Das was, in 1873, barely 19 years of age, and, although he must have been present when the transaction took place, he evidently did not take any part in it, and everything was done by his elder ' brother Hari Das, who managed the affairs of their firm. We are, therefore, unable to place any weight on the statements of Balkishan Das. The evidence given by the other two witnesses is inconsistent, improbable, and incredible.

18. As great stress was laid by respondent's counsel in the argument before us on the fact of the non-production of their account-books by the defendants, we directed those books to be produced before us, and we have taken evidence in regard to the entries contained in them relating to the various transactions with the plaintiff. The accounts do not throw any light on the question we have to determine. The transaction of the 4th of February 1873 has been entered in the books as a transaction of sale, which on the face of it purports to be. There is no reference to the right of repurchase nor to a right to redeem. The account books, therefore, do not in our opinion assist the case of either party.

19. Upon a consideration of the terms of the iqrarnama, the surrounding circumstances and the oral evidence, we have come to the conclusion, in concurrence with the Court below, that the contracting parties intended the transaction to be one of mortgage by conditional sale, and not an absolute sale with a right to repurchase. This case is therefore perfectly distinguishable from that of Bhagwan Sahai v. Bhagwan Din, decided by their Lordships of the Privy Council and relied upon by defendants.

20. Now remains the question of the amount which the plaintiff must pay in order to obtain redemption. The Court below has held that the amount payable under the iqrarnama of the 4th of February 1873 consists, in addition to the Rs. 1,65,000 mentioned therein, of the arrears due by tenants and of Rs. 5,953-2-3 due on the deed of estimate of the 6th April 1873 and interest on that amount up to the 1st of March 1876. As for the arrears, the Subordinate Judge remarks that no evidence has been adduced to prove the amount of the arrears. He has directed an inquiry to be held in execution of decree for the purpose of ascertaining that amount and has made a decree for the payment of the amount which may be so ascertained. This procedure is certainly not warranted by any provisions of the Code of Civil Procedure. It was not a case of mesne profits, the determination of the amount of which in execution proceedings is sanctioned by Section 212 of the Code. In order to enable the Court to make a decree for redemption under Section 92 of the Transfer of Property Act, 1882, the Court ought to have ascertained the amount payable under the mortgage, as it was bound to declare in the decree the sum upon payment of which within the time fixed redemption was to take place. That portion of the decree of the Court below, therefore, which directs the arrears due by tenants to be ascertained in execution proceedings cannot be sustained. It was the duty of the defendants to prove what amount of arrears was due, and, as they failed to do so, their claim for the arrears ought to have been disallowed. This, we may remark, will not prejudice the defendants, as they will be entitled to realize from tenants the arrears accruing due previous to redemption.

21. As regards the sum of Rs. 5,953-2-3, whilst it is contended on behalf of the defendants-appellants that interest should have been allowed on that amount, not only till the 1st of March 1876, but also for the period subsequent to that date, it is urged on behalf of the plaintiff that no portion of that amount should have been decreed, the plaintiff's allegation being that Hari Das and Balkishan Das relinquished their claim to that amount upon the plaintiff's undertaking not to prosecute them for perjury. The only evidence in support of the plaintiff's allegation is his own deposition, which on this point is not corroborated by any other evidence. We agree with the Subordinate Judge that the evidence is not sufficient to justify our relieving the plaintiff of his liability to pay that amount. We are further of opinion that interest should have been awarded on that amount for the period subsequent to the 1st of March 1876. The deed of estimate of the 6th of April 1873, under which that sum was due provides for the payment of interest. It is true that when on the 28th of March 1875, Mr. Legge admitted Rs. 5,953-2-3 to be the balance due on that date upon that instrument, he made an indorsement to the effect that the balance would, be payable 'in a year without interest' (see appellant's book, p. 31). But we are unable to agree with the learned Counsel for the respondent that there was a notation of the original contract and that no further interest was payable on the sum of Rs. 5,953-2-3. In our opinion the plaintiff would not have been liable to pay interest had he made the payment within one year. But as he failed to do so, the defendants are entitled to obtain interest on that amount in accordance with the terms of the deed of the 6th of April 1873. In this respect the decree of the Court below should in our judgment be varied.

22. The appellants in their petition of appeal raised a plea to the effect that they were entitled to compensation for improvements. Their learned Counsel, Mr. Conlan, conceded that no evidence had been adduced to prove improvements. The appellants are not, therefore, entitled to obtain any compensation on account of improvements.

23. The result is that we vary the decree below by setting aside that portion of it which directs that the amount of arrears due by tenants should be assessed in execution proceedings, and by awarding further interest on Rs. 5,953-2-3, referred to above, at the rate of 12 per cent, per annum from the 1st of March 1876, to the date hereinafter mentioned or the date of payment, if payment be made on au earlier date. We direct the parties to pay and receive the costs of the litigation in proportion to their failure and success. We extend the time for the payment of the mortgage money to the 31st of July 1897, and in other respects we affirm the decree below.


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