1. This is a Small Cause Court case in which the plaintiff sued on the basis of a loan which was secured by an usufructuary mortgage. The mortgage provided for realisation of the money from the person of the mortgagor if there was a defect in title. It is not even alleged that there was any defect in the title of the mortgagor. Since this was an usufructuary mortgage, no suit could be brought on the basis of it apart from the question of personal liability unless it wasshown that the property was destroyed by any cause other than the default of the mortgagor or the mortgagee.
In the present case the property was in thePunjab and the mortgagor and the mortgagee bothabandoned it and came away to India. The partition of India did not legally have the effect ofdestroying the rights of Hindu owners of property in Pakistan or of Muslim in India. Theplaintiff is not in possession of the property merelybecause he chose to abandon it and came awayto India. It was no doubt due to the fact thathe apprehended danger to his person that he cameaway to India. That will not, however, affect theposition. It was in fact owing to his act thatthe property was abandoned. The decision ofthe lower courts must, therefore, be upheld andthis application fails and is dismissed with costs.