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Bhusi Rai Vs. Ganesh Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All499; 103Ind.Cas.160
AppellantBhusi Rai
RespondentGanesh Rai and ors.
Excerpt:
.....held that there was only one transaction and the whole failed. (b) that while admittedly the simple mortgage, so far as it concerned the occupancy holding, must fail, it was good as regards the two houses. (c) that while it might be that the simple mortgage of the occupancy holding and the two houses failed as a 'contract,'the mortgage of the two houses was valid as a 'transfer. the claim was, in the alternative, for possession as well and this court, at an earlier stage, held that no possession could be awarded. it was conceded before us, and we were not called upon to decide the question, that the main contract being bad in law the subsidiary covenant should fall with it. justice kendall and i were satisfied of the soundness of the propositions pressed by counsel and to some..........the mortgagee, appellant here, it is contended that this third clause amounted to an independent simple mortgage. for the purposes of this case it may be taken that the third clause standing by itself was in the nature of a simple mortgage. the occupancy holding and the houses referred to were identical with the occupancy holding and the houses referred to in the first two clauses.7. the plaintiff originally asked for several reliefs, the only one with which we are now concerned being a prayer that the mortgaged houses might be sold for the payment of rs. 540 the total amount due on the three mortgages.8. the trial court dismissed the suit relying upon the decision in tulsi ram v. satnarain a.i.r. 1921 all. 392, and held further that the two subsequent mortgages fell with the first.....
Judgment:
ORDER

Boys and Kendall, JJ.

1. Plaintiff appeals from a decree of the lower appellate Court upholding the decree of the trial Court dismissing his suit based on three mortgages.

2. On the 13th of June 1908, the defendant executed in favour of the plaintiff a usufructuary mortgage of his occupancy holding. As it will be necessary to consider the effect of the various clauses of this mortgage in some detail those clauses may be set out concisely.

3. Firstly, the defendant executed a usufructuary mortgage in favour of the plaintiff of his occupancy holding.

4. Secondly, if the mortgagee was ejected two remedies were given him:

(1) he could sue for possession and damages at the rate of ten maunds per bigha;

(2) he could sue for the debt and interest against the person and property of the defendant including two houses.

5. Thirdly, the occupancy holding and the two houses were declared to be mortgaged to secure the repayment of the debt and interest.

6. For the mortgagee, appellant here, it is contended that this third clause amounted to an independent simple mortgage. For the purposes of this case it may be taken that the third clause standing by itself was in the nature of a simple mortgage. The occupancy holding and the houses referred to were identical with the occupancy holding and the houses referred to in the first two clauses.

7. The plaintiff originally asked for several reliefs, the only one with which we are now concerned being a prayer that the mortgaged houses might be sold for the payment of Rs. 540 the total amount due on the three mortgages.

8. The trial Court dismissed the suit relying upon the decision in Tulsi Ram v. Satnarain A.I.R. 1921 All. 392, and held further that the two subsequent mortgages fell with the first mortgage because:

under the express terms mentioned in the two subsequent mortgages they are governed by the conditions and stipulations stated in the first mortgage.

9. The lower appellate Court, relying on the same authority and holding that the houses could not be separated in any way from the occupancy holding because:

the transaction is clearly a single one and inter-dependent and the whole contract is void and unenforceable, dismissed the appeal

10. If the decision in Tulsi Ram v. Satnarain A.I.R. 1921 All. 392 had been exactly on the same facts, there would have been nothing more to be said, for with that decision we agree. But the facts in that case did not cover the whole of the conditions of the present suit. In that case there was a usufructuary mortgage of an occupancy holding with a covenant on dispossession for recovery by sale of other property. So far the transaction there was similar to the transaction in the present case to the extent of the first and second clauses which we have set out above. Mr. Justice Sulaiman and Mr. Justice Gokul Prasad held that there was only one transaction and the whole failed. In the present case it is contended on the strength of the third clause:

(a) that there was an independent simple mortgage of the occupancy holding and the two houses;

(b) that while admittedly the simple mortgage, so far as it concerned the occupancy holding, must fail, it was good as regards the two houses.

(c) that while it might be that the simple mortgage of the occupancy holding and the two houses failed as a 'contract,' the mortgage of the two houses was valid as a 'transfer.'

(d) that the stage of contract was passed and only the law of transfer was applicable.

11. These contentions of course involve holding that regarded as a transfer the legal, portion of the transaction should be upheld notwithstanding the fact that in the illegal portion there had been an attempt to defeat the law.

12. In support of these contentions we have been much pressed with the decisions in Bajrangi v. Ghura [1916] 38 All. 232, and Rajendra v. Ramjatan [1917] 39 All.539. There can be no doubt but that to some extent at any rate the appellant's contentions are supported by those two decisions, though the facts were not similar and on that ground they have been distinguished in later cases, both of them in Tulsi v. Satnarain A.I.R. 1921 All. 392, and the latter also in Sital v. Ram Khelawan : AIR1925All543 . It is true that these cases concerned a sale and a mortgage respectively in which the illegal and legal parts were not related as principal and subsidiary parts, and so far are distinguishable from the present case.

13. But in so far as it appears to have been held that no question of the application of the Contract Act called for consideration, and in so far as it appears to have been held that the transactions were not to be regarded as an indivisible whole and that the legal part could be given effect to, holding the illegal part void, we do not feel ourselves able to follow them in their entirety. They were, however, decisions of Division Benches, three Judges in all, and we consider it desirable that the case should be heard before a Full Bench. It will therefore be laid before the Honourable the Chief Justice for his orders.

Mukerji, J.

14. This case was referred to a Full Bench by my learned colleagues to obtain an authoritative ruling as to whether two cases of this Court, one reported in Bajrangi v. Ghura [1916] 38 All. 232, and the other in Rajendra Prasad v. Ram Jatan Rai [1917] 39 All.539, were correctly decided. But in the circumstances of the case, as they have transpired since the referring order was made, the decision of the question becomes immaterial.

15. The facts are briefly these: The appellant who was the plaintiff in the Court of first instance lent money to some of the respondents and to the predecessor-in-title of some others on foot of three documents. The first document dated the 13th of June 1908 by which a sum of Rs. 160 was lent is the main transaction. It was a usufructuary mortgage by which a certain occupancy holding was mortgaged. Then followed two subsidiary mortgages known as mashrutul rehau and it was agreed that the principal and interest on these two subsequent bonds would be paid along with the money payable on the first document. The Courts below dismissed the suit, which was brought to recover the money due on all the three documents, on the allegation that the plaintiff was in possession and was subsequently dispossessed. They did so on the ground that the contract was illegal and could not be enforced. The claim was, in the alternative, for possession as well and this Court, at an earlier stage, held that no possession could be awarded.

16. The main point that was pressed before the Division Bench was that there was an independent agreement embodied in the first mortgage deed by which the plaintiff-appellant could bring to sale at least two houses mortgaged. The reference was made on the assumption that such was the case.

17. Before myself and my learned colleagues the first mortgage-deed was re-examined and it became quite apparent to all of us that what was alleged to be an independent covenant was really nothing but a subsidiary one. As we interpret the document, the covenants came to this: First, there was to be a pure usufructuary mortgage. In the case of the mortgagee's dispossession he would be entitled to recover possession with damages calculated at the ten maunds per bigha. In the alternative he was to have the right to recover the mortgage money with interest from the date of dispossession at 2 per cent per mensem. Then followed the third covenant and it was to the effect that the occupancy holding usufructuarily mortgaged, and two houses were to stand hypothecated to secure the principal money and the damages or interest provided for above. In this way, the necessity for enforcing the third covenant could arise only in the case of dispossession from the occupancy tenancy. It was conceded before us, and we were not called upon to decide the question, that the main contract being bad in law the subsidiary covenant should fall with it. There is a ruling of a Division Bench of this Court to that effect in the case of Tulsi Ram v. Sat Narain A.I.R. 1921 All. 392. In view of this ruling, if the third covenant was, a subsidiary covenant, and we hold that it is, it cannot be enforced.

18. If, on the other hand, the third covenant be treated as an independent covenant, it is clear that a claim based on it would be time-barred, for, the interpretation of that covenant would be that it was meant to secure only the principal money. That interpretation being put, the limitation would begin to run from the date of the mortgage, as no date was mentioned in the deed for repayment of the principal amount. That being so, the suit having been brought beyond 12 years of the execution of the deed, it is time barred. As regards the second and third bonds, they are mere subsidiary bonds, and the money due on them was payable only along with the money payable on the earlier deed. As nothing is recoverable on the earlier deed nothing is recoverable on the subsequent ones. The result is that the appeal fails. I would dismiss it with costs.

Boys, J.

19. This appeal first came before Mr. Justice Kendall and myself. The plaintiff held a mortgage-deed in his favour. He admitted that so far as the first clause was concerned which gave him a usufructuary mortgage of the defendant's occupancy holding, he could not sue, and similarly he admitted that he could not sue on the conditions of the second portion of the deed whereby, if he was ejected, two remedies were given to him (1) to sue for possession and damages at the rate of ten maunds per bigha; and (2) to sue for the debt and interest against the person and property of the defendant including two houses belonging to the defendant. But he contended that there was a third clause upon which he could rely as something quite independent of the first two clauses and by which he was given a simple mortgage of the occupancy holding and the two houses. He had, of course, to make one further admission that even if this third clause could be regarded as giving him an independent simple mortgage he could not put to sale the occupancy holding. But he asked for sale of the two houses. The case was referred by Mr. Justice Kendall and myself to a Full Bench, with the permission of the Honourable the Chief Justice, for the following reason and no other. The argument with which we were pressed at the hearing before the Division Bench was, briefly stated, as follows:

20. Firstly, the third clause gave the plaintiff a simple mortgage wholly independent of the usufructuary mortgage given by the first clause.

21. Secondly, the plaintiff was entitled to separate the simple mortgage of the occupancy holding from the simple mortgage of the two houses and to ask for sale of the latter without the whole mortgage failing owing to the conjunction of the mortgaged holding with the two houses.

22. This was supported by the contention strenuously pressed that the transaction having reached the stage of embodiment in a deed of mortgage, the Contract Act had no longer any application in any way whatsoever; that there was no question now of a contract or of the contract law; that the matter had passed the stage of a contract and he was entitled to have the transaction judged by the terms of the Transfer of Property Act as a transfer and by the terms of that Act alone, without any reference to the Contract Act. This contention was founded on certain phrases to be found, in Bajrangi v. Ghure [1916] 38 All. 232 and Rajendra v. Ramjatan [1917] 39 All.539. Mr. Justice Kendall and I were satisfied of the soundness of the propositions pressed by counsel and to some extent at least justified by the two cases to which we have referred that a contract no longer existed, and that we were not justified in looking at the transaction otherwise than solely as a transfer.' After the case had been argued at some length before the Full Bench, counsel for the plaintiff admitted that he must resile from part of the position that he had taken up before the Division Bench and that he could no longer contend that there was not a subsisting contrast and his contention was reduced to this that all the cases that have been hitherto decided could equally well have been decided in the same way upon the provisions of the Transfer of Property Act alone without reference to the terms of the Contract Act.

23. His case, however, had to fail upon a further examination of the terms of the deed itself. The significance of a word in the third clause was brought to our attention for the first time at the hearing before the Full Bench. The word mashruta in the phrase rupiya mundarja we mashruta wasiqa haza clearly has reference to the damages at 10 maunds per bigha to which under certain circumstances the plaintiff would be entitled. It is clear therefore that on the terms of this particular document the third clause could not be regarded as constituting a simple mortgage wholly independent of the earlier conditions of the deed. It is unnecessary to discuss the terms of the deed in particular further, for all such documents as these differ in their particular phraseology, and any discussion of the particular details could have no application to any other case on a document differently warded. The consideration to which I have referred is sufficient in itself. I may also add another fact which was not noticed by anybody until my brother Mr. Justice Mukerji noticed it towards the conclusion of the argument, viz., that even if the plaintiff were entitled to treat the third clause as constituting an independent simple mortgage, any suit on it would be barred by limitation.

24. It is only necessary to make one farther comment and that is that this case would never have been referred to a Full Bench at all had the Division Bench had before it an authorized translation or transliteration of the whole document. Owing to the failure to provide the Court with such translations or transliterations, time is constantly wasted and probably, as in this case, material points are overlooked. It is to be hoped that provision will soon be made for complete authorized transliteration or translations of documents being laid before the Court when, as so frequently happens, the main initial question at any rate depends on the interpretation of the document. Anything more unsatisfactory than the present procedure it is difficult to conceive, where unless the case is postponed for such a translation or transliteration to be made, the Court is depending for its knowledge of the document on the particular phrases which counsel on one side or the other may read out. The only other alternative is for the Court, and I have frequently had to adopt it to insist upon having the whole document slowly read and taking down with its own hand such portions as may seem, in the light of the circumstances then disclosed, to be important. It is obvious that even so the particular significance of a particular word or phrase may be wholly missed.

25. For the reasons given I would dismiss the appeal with costs.

Kendall, J.

26. I agree in the order proposed. The appellant claimed that the clause purporting to create a simple mortgage of the occupancy holding and the two houses was independent of the rest of the deed. He has not succeeded in showing that it was independent, but even if it had been, such a mortgage would have been barred by limitation, and we cannot therefore consider it on its merits.

27. The appeal is dismissed with costs.


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