1. This appeal is by the first two defendants, and arises out of a suit for sale and other reliefs, instituted on foot of a mortgage dated 9th September 1917. Defendant 1, Gauri Singh, on behalf of himself and his then minor son, defendant 2, made the mortgage in suit for a sum of Rs. 7,000 odd. The mortgage was in favour of some of the plaintiffs, the other plaintiffs being joint members of the family with the mortgagees. The plaintiffs' case was that out of the properties mortgaged they were not put in possession over some, and therefore under a clause of the mortgage, they were entitled to recover the mortgage money with interest at 2 per cent per mensem from the date of the mortgage, by sale of the mortgaged property. They accordingly asked for sale in lieu of principal and interest and, in the alternative, they asked for possession and mesne profits. The suit was contested by the two defendants, who are the appellants before us, but the suit succeeded, and a decree was made for sale in lieu of the principal mortgage money and a reduced sum of interest. The interest claimed was reduced on the ground that the clause relating to interest was penal. In this Court it has been contended that Clause 7, under which the plaintiffs claim a right to sell, did not authorize the plaintiffs to that relief; and we have to construe Clause 7. The mortgage-deed is printed at p. 71 and subsequent pages of our book. The mortgagor says:
I, the executant, have therefore...executed this mortgage deed... promising to pay the same in five years....For payment of interest of the aforesaid sum I have mortgaged with possession to the aforesaid creditors zamindari shares, sir and khudkast lands and cultivatory holdings specified below....
Clause 7 is as follows:
If the possession of the mortgagees be interfered with in any way the mortgagees shall have power to bring a claim for delivery of possession, damages and costs, or to realize the entire amount of the mortgage due under the mortgage deed with interest at the rate of '2 per cent per month from this date up to the date of payment from my person, mortgaged property and other moveable and immovable properties....
2. The contention for the appellants is that Clause 7 gave a right of suit for sale only in the case of the mortgagees being put in possession, and thereafter being dispossessed. It is argued that: it does not cover a case where there was initially a failure on the part of the mortgagors to deliver possession.. The learned Counsel for the respondents has urged that Clause 7 covers both the cases of failure to deliver possession initially and a case of subsequent dispossession. We have looked into the vernacular, and we find that the official translation contained in our book is correct. The clause presupposes the possession of the mortgagees, and then provides as to what would happen when the mortgagees' possession is interfered with. This being our view of the clause, we find that there is no provision as to what would happen in the case of the mortgagors failing to deliver possession initially.
3. The learned Counsel for the respondent has relied on a decision of their Lordships of the Privy Council, namely, Nar Singh Partab Bahadur Singh v. Mohammad Yakub Khan A.I.R. 1929 PC 139. He has contended that their Lordships have laid down, as a general rule of law that where, in the case of a usufructuary mortgage a mortgagee has a right to sue for the mortgage money, he is entitled also to sue for the sale of the property. We have carefully read that judgment and are of opinion that their Lordships did not lay down any general rule of law, but confined their remarks to the peculiar language of the mortgage-deed before them. At p. 581 (of 1929 A.L.J.) their Lordships quoted Clause 2, and pointed out that there was a hypothecation of the mortgaged property in lieu of the mortgage money and interest. That being the case, their Lordships remarked that as the mortgage money became payable by virtue of Section 68, T.P. Act, the mortgage money was realizable under the contract by a suit for sale instituted under Section 67, T.P. Act. Their being no clause providing specifically for a case in which the mortgagee is not given possession over a part of the property, the only relief which the mortgagees can have is for possession and mesne profits. These reliefs were asked for by the respondents in the alternative.
4. Holding that Clause 7 does not apply to the present case, and it being admitted before us that on the finding of the Court below the mortgagees are entitled to possession over the tenancies at fixed rate alone, we modify the decree of the Court below and give the plaintiffs a decree for possession over the fixed rate tenancies in suit, and to three years' mesne profits prior to the institution of the suit, and to mesne profits from the date of the institution of the suit till recovery of possession, or three years from this date, whichever event may happen earlier. The Court below will ascertain the amount of mesne profits which has accrued prior to the institution of the suit. As regards costs, we direct that the parties shall receive and pay costs in both the Courts in proportion to their respective success and failure. As the assessment of costs payable would depend on the amount of mesne profits allowed to the plaintiffs prior to the institution of the suit, costs cannot be calculated properly in this Court. The Court below will ascertain the costs payable by the parties and will insert the same in the decree. The decree of this Court will mention this direction and will state what costs have been incurred by each party in this Court.