1. This appeal arises out of a suit brought by the appellant for arrears of rent due upon a lease granted in November 1903 to respondents Nos. 3, 4 and 5 and the father of respondent No. 1, by one Fakir Chand whom the appellant claims to represent. The main question in the case is whether1 the lease is still in force as between the parties to this appeal.
2. On October 27th, 1903, respondents Nos. 3, 4 and 5 and Baldeo Sarai, father of respondent No. 1, made an usufructuary mortgage of their shares in two villages Sirsawa and Pipal Khera in favour of Fakir Chand who on November 12t,h in that year gave the mortgagors a lease of the property. Fakir Chand died in January 1905. He seems to have been only manager of the property on behalf of other persons and on his death a dispute arose as to who should be regarded as mortgagor of the property. The appellant claimed to be regarded as sole mortgagor but she was opposed by the sixth respondent Sri Kishen Lal who claimed a one-fourth share in the mortgage. Mutation of names was ultimately effected in favour of the appellant in respect of three-fourths of the property and in favour of Sri Kishen Lal in respect of the remaining one-fourth and Sri Kishen Lal succeeded in obtaining a decree against the mortgagors for one fourth of the rent payable under the lease. Meanwhile, ori December 14th, 1907, the mortgagors who seem to have been willing to recognise the appellant as sole mortgagee in succession to Fakir Chand, made a fresh mortgage of the bulk of the property in favour of the appellant alone in avowed super-session of the mortgage and lease of 1903. They stated in the deed that they had placed the appellant in possession of the property and that she was already re-carded as lambardar of one of the villages and they promised to get her appointed lambardar of the other village also. The present suit for rent is based upon the lease, of 1903. The plaintiff-appellant in her plaint states that the mortgage of 1907 never took effect, and, in view of the fact that Sri Kishen Lal has succeeded in establishing his right to one-fourth of the rent reserved by the lease, the appellant has claimed three-fourths only of the rent for the years to which the suit relates. The defence is that the mortgage and lease of 1903 have been superseded by the mortgage of 1907. The Assistant Collector has accepted this defence and dismissed the suit, though he has found on the evidence that the mortgage of 1907 was not given effect to, in its entirety at all events, and that the respondents other than Sri Kishen Lal are still in possession of the property.
3. An examination of the mortgage-deed of 1907 shows clearly that it was intended to supersede entirely the mortgage and lease of 1903. But it could not be given effect to in its entirety because Sri Kishen Lal succeeded in establishing his right to be treated as lessor of the property to the extent of his one-fourth share. The result of the action taken by him was that the mortgagors remained in possession of the whole of the mortgaged property as if the mortgage of 1907 had never been made. The oral evidence shows that the appellant was unable to recover any portion of the rents of the property from the cultivators and suits for rent brought by her against them were dismissed. As between Sri Kishen Lal and the other respondents the mortgage and lease of 1903 are still in force, it was never intended by any one that the mortgagors should hold possession of one-fourth as lessees under the lease of 1903 while the appellant hold collecting possession as mortgagee of the remaining three-fourths. Nor as the mortgage of 1907 superseded entirely the mortgage of 1903 for Sri Kishen Lal is still mortgagee. It was never intended that the mortgage of 1907 should supersede part only of the mortgage of 1903. The greatest confusion would ensure if it were held that both mortgages are partly in force and the loan of 1903 has been partially superseded.
4. It appears to us that the mortgage of 1907 failed to take effect at all that the lease of 1903 is still in full force and that the present suit is maintainable.
5. Under Order XLI, Rule 25, we direst that the record be returned to the Court below for trial of the following issue:
What amount is due to the appellant in accordance with the lease of 1903P
6. Further evidence may be admitted. On return of the finding ten days will be allowed for objections.