1. This is a plaintiff's appeal and is directed against an order returning the plaint to the plaintiff for presentation to the proper Court. The material facts are these. One Mirza Ali Husain Khan was owner of seven villages: 1. Bhourapur, 2. Sukhmapur, 3. Pitambarpur; 4. Banwaripur, 5. Saloula Khurd; 6. Dayanatpur and 7. Badshahpur Gahar, all situated in the district of Cawnpore. His estate was taken over by the Court of Wards in 1895. There were debts to pay and on 14th August 1896 the Court of Wards executed a simple mortgage hypothecating the villages of Dayanatpur and Badshahpur Gahar in favour of the Maharaja of Balrampur for Rs. 27,000. Ali Husain Khan died in 1907, leaving his daughter, Mt. Bakhtawar Begam, as his heir and representative. In 1908 the estate was released in favour of Bakhtawar Begam. One Husaini Begam laid claim to four of the villages which Bakhtawar Begam had inherited1 from her father, namely Banwaripur, Saloula Khurd, Dayanatpur and Badshahpur Gahar. Husaini Begam's claim was decreed by this Court. Bakhtawar Begam appealed to His Majesty in Council and stood in need of funds. So on 27th July 1910 she executed a deed of sale in favour of the appellant's brother, conveying to him an eight annas share in the four villages which had been decreed in favour of Husaini Begam. She also stipulated under this sale deed that she herself would be responsible for the payment of half of the money due to the Maharaja of Balrampur under the mortgage deed dated 14th August 1896 and that the vendee would be responsible for the payment of only the other half. The vendee also joined Bakhtawar Begam as a party appellant in the proceedings. The appeal was eventually allowed by their Lordships of the Privy Council and the claim of Husaini Begam was dismissed. By partition between the plaintiff and his brother the property purchased under the sale deed dated 27th July 1910 fell to the lot of the plaintiff. On 12th March 1915 Bakhtawar Begam executed a subsequent mortgage in favour of defendant 1 Parshotam Das, and of the father of defendant 2, mortgaging the remaining half of the villages. Dayanatpur and Badshahpur Gahar, along with certain other property some of which was situated in the City of Lucknow.
2. In 1915 the Maharaja of Balrampur filed a suit for enforcement of the mortgage of 14th August 1896 and impleaded Bakhtawar Begam, the present plaintiff-appellant, and the subsequent mortgagees under the deed dated 12th March 1915, namely defendant 1 and the father of defendant 2 of the present suit as defendants. A final decree for sale was passed in 1918, execution was taken out and the property was ultimately sold. Neither Bakhtawar Begam nor the subsequent mortgagees under the mortgage deed dated 12th March 1915 paid anything in satisfaction of this decree of the Maharaja of Balrampur. The plaintiff on 14th January 1921 and on 22nd July 1924 had to pay certain sums of money in order to save the property. By these payments he saved not only the property which belonged to him under the sale deed of 27th July 1910 but also the remaining property. In 1927 a suit was filed by the subsequent mortgagees under the mortgage deed dated 12th March 1915, that is, the present defendant 1 and the father of the present defendant 2 in the Court of the Subordinate Judge of Lucknow, for foreclosure. The plaintiff-appellant, Jagmohan Das, was also impleaded as a defendant in that suit. It is stated in para. 10 of the present plaint that the plaintiff was directed in that case to bring a separate claim in respect of the amount which he had paid in satisfaction of the decree of the Maharaja of Balrampur. So the suit out of which this appeal has arisen was filed by him on 1st August 1931 in the Court of the Subordinate Judge of Cawnpore for the recovery of half of the amount paid by him, together with interest, his case being that he was liable to pay only half of what he had paid and that defendants 1 and 2 were responsible for the payment of the other half. It was prayed that in default of payment of the sum claimed by the defendants an eight annas share in villages Dayanatpur and Badshahwar Gahar, other than the share belonging to the plaintiff, may be sold by auction. The case of the plaintiff is that by paying off the prior mortgagee the Maharaja of Balrampur, he has been subrogated to the rights of the prior mortgagee and is entitled to realize the sum claimed by sale of the properties mentioned above. As has already been mentioned, these villages Dayanatpur and Badshahpur Gahar are situated in the district of Cawnpore. The suit was first dismissed by the Court below on 3rd September 1932 on the ground that it was barred by limitation. The plaintiff filed First Appeal No. 412 of 1932 in this Court. That appeal was allowed. It was held by this Court that the suit was not barred by limitation and the case was remanded to the Court below for trial on the merits. The judgment of this Court is dated 31st May 1937. When the case was taken up by the Court below on remand, a plea was raised by some of the defendants that the Court at Cawnpore had no jurisdiction to hear the suit as some of the defendants were agriculturists within the meaning of the U.P. Agriculturists Relief Act, and Section 7 of that Act was relied upon. It was pointed out that all the defendants were residents of Lucknow and it was urged that the suit should have been filed in the Court at Lucknow.
3. The finding of the learned Civil Judge is that one of the defendants, namely Nawab Asaf Mirza, defendant 3, is an agriculturist as he is an exproprietary tenant in the villages Sukhmapur and Badshahpur Gahar and pays Rs. 3-12-0 on account of the tenancy in Sukhmapur and Rs. 3-8-6 on account of the tenancy in village Badshapur Gahar as rent. Nawab Asaf Mirza is the son and one of the heirs of Bakhtawar Begam who died on 30th September 1926. The Court below has accepted this argument, and has returned the plaint to the plaintiff for presentation to the proper Court, as has been mentioned above.
4. The argument put forward on behalf of the defendants, who raised this plea in the Court below, was that this suit related to an 'unsecured loan.' The plaintiff urged in reply that it was not in respect of an unsecured loan as he had been subrogated to the rights of the prior mortgagee, Maharaja of Balrampur, and was entitled to realize his money by sale of immovable property situated within the jurisdiction of the Cawnpore Court. The Court below has referred to the definition of 'secured loan' and 'unsecured loan' in Section 2(10)(b) and (c), U.P. Agriculturists' Relief Act, and has held that it cannot be said that any property was 'specifically hypothecated' as security for the money in respect of which the plaintiff is suing, and that therefore it must be held to be an 'unsecured loan.' The respondents have not appeared, but the learned Counsel appearing for the plaintiff-appellant has presented the case to us with fairness and has invited our attention to all the relevant provisions of the law. We have come to the conclusion that the decision of the Court below is not correct. Section 16, Civil P.C., lays down the general rule on the subject of the Court in which suits have to be instituted and it is provided there that.suits...for...sale...in the case of a mortgage of or charge upon immovable property...shall be instituted in the Court within the local limits of whose jurisdiction the property is situated.
5. It was argued by the defendants in the Court below that the 'loan' in respect of which the plaintiff was suing was an 'unsecured loan' and that the provisions of Section 7, U.P. Agriculturists' Relief Act, had to be followed, even though the plaintiff be entitled to the recovery of the money by sale of immovable property situated within the jurisdiction of the Court at Cawnpore. It seems to us however that the construction placed toy the Court below on the definitions of 'secured loan' and 'unsecured loan' in the U.P. Agriculturists' Belief Act is not correct. To begin with, the definition speaks only of property being hypothecated and does not say that it must necessarily have been hypothecated by the defendants who happen to be interested in contesting the suit. The Court below has observed that the charge in favour of the plaintiff is 'merely a creation of law,' whereas 'hypothecation of property is an act of the parties.' In our opinion, these observations are based on a misapprehension of the right on which the plaintiff bases his claim. There is no question of the creation of a charge in his favour. He claims to have been subrogated to the rights which the Maharaja of Balrampur had under the mortgage deed dated 14th August 1896, executed in the Maharaja's favour by the predecessor-in-title of defendants 1 and 2 as well as of defendant 3, and to be entitled to exercise those rights in order to be able to realize the money claimed. In our opinion, it is not correct in these circumstances to say that the property in question cannot be deemed to be hypothecated as security for the 'loan' in respect of which this suit has been brought.
6. In this view of the matter, the defendants cannot, in our opinion, derive any advantage by pointing to the word 'specifically' in the definition. Property is either hypothecated or is not hypothecated. If it is hypothecated, it is specifically hypothecated. We consider that the suit brought by the plaintiff-appellant is in respect of a 'secured loan,' and not in respect of an 'unsecured loan,' as held by the Court below. That being so, the plea raised on behalf of the defendants was untenable and should not have been given effect to. For the reasons given above we allow this appeal, set aside the order passed by the Court below on 31st May 1938, and remand the suit to the Court below with the direction that it shall restore it to its original number in the register and shall proceed to hear and decide it on the merits according to law. The plaintiff is entitled to his costs of this appeal. The costs in the Court below shall abide the result.