1. In the year 1898 Sheo Dutt Lonia the husband of the defendant Musammat Munia executed a usufructuary mortgage in favour of the plaintiffs ancestor of two plots Nos. 219 and 221 in Mauza Kalyanpur in the Jaunpur District. The mortgagor was occupancy tenant of No. 219 and fixed-rate tenant of No. 221. After her husband's death Miisammat Munia relinquished No. 219 to the zemindar and the mortgagee lost possession of it. The rent of No. 221 fell into arrears. The zemindar got it put up for sale in execution of a decree for those arrears and it has been purchased by the defendants-appellants Ram Karan Singh and Har Karan Singh. The plaintiff-mortgagee brought the present suit, on the basis of Section 68 of the Transfer of Property Act and of a covenant contained in the mortgage for recovery of his mortgage-money by sale of plot No. 221. His suit has been decreed by the Court below and the auction-purchasers appeal.
2. Three pleas have been urged before me:
1. That the arrears of rent accrued owing to the default of the mortgagee himself and, therefore, he cannot enforce his mortgage against the purchasers of the plot.
2. That the mortgagee has not relinquished possession of No. 221 and, therefore, he cannot claim to recover any part of his mortgage-money from this plot. In the alternative it is urged that he can only recover a proportionate part of it.
3. That because part of the mortgaged property consisted of an occupancy holding the entire mortgage is invalid and unenforceable.
3. The first question is a mixed question of law and fact. The respondent takes a preliminary objection that it is raised for the first time in appeal to this Court. The objection is correct. The plea was not taken in the write statement. It is not to be found in any of the eight issues framed by the learned Munsif. There is no discussion of it in the judgment of the Court below. Under these circumstances this Court is not in a position to say whether the arrears of rent were due to -any default of the mortgagee or not, and the respondent is fully entitled under the rulings of this Court and of the Privy Council to object to the point being taken for the first time in second appeal.
4. The second plea consists of two alternatives which are quite distinct from each other. As regards the first alternative, where Section 68 of the Transfer of Property Act has become applicable the mere fact that the mortgagee still retains possession of some part of tile hypothecated property is no ground for refusing him his remedy for recovery of the mortgage-money. No authority has been, shown to me in support of the appellants' contention and it is untenable. With reference to the second alternative the learned Subordinate Judge has discussed at considerable length the question whether a decree for sale or only a personal decree can be passed in the absence of a covenant to the contrary under Section 68 and has held that only a personal decree can be passed. He holds, however, that the question is not really material in the present instance because there is a covenant in the mortgage-deed which justifies the mortgagee in getting a decree for sale.
5. The mortgage-deed has been read to me and there is a covenant in it by which the mortgagee is entitled in the event of dispossession from the whole or any part of the property to recover his mortgage-money from any moveable or immoveable property belonging to the mortgagor whether forming part of the mortgaged property or not. This covenant is not disputed by the appellants, but they contend that it is not binding on them as transferees from the mortgagor. In support of this proposition they rely on Jamna Das v. Ram Autar Pande 13 Ind. Cas. 304 ; 31 A. 63 : 16 C.W.N. 97 : 11 M.L.T. 6 : 9 A.L.J. 37 : (1912) M.W.N. 32 : 15 C.L.J. 68 : 14 Bom. L.R. 1 : 21 M.L.J. 1158 : 39 I.A. 7 (P.C.). That case is not, however, in point. It merely holds that a purchaser of the mortgaged property is not under a personal liability to pay the mortgage-money under Section 90 of the Transfer of Property Act corresponding to Order XXXIV, Rule 6 of the present C.P.C. A covenant contained in a mortgage-deed giving the mortgagee a right to recover the mortgage-money by sale, of the mortgaged properly is certainly binding on any person claiming title from a mortgagor and stands on an entirely different footing from the right to a personal decree.
6. The third plea is that a mortgage of an occupancy holding is void and that the inclusion of this holding in the deed invalidates the whole transaction. If the mortgage had been executed after the passing of the Agra Tenancy Act of 1901 there would have been much force in this plea. Under the previous law it was, however, held that such a mortgage was not absolutely void vide Rang Lal Kunwar v. Kishori Lal 28 Ind. Cas. 278 : 37 A. 278 : 13 A.L.J. 300. In another case which was very similar to the one before me it was held by Richards, C.J., and Walsh, J., that a mortgage of both occupancy and fixed-rate holdings executed prior to the passing of the Agra Tenancy Act could be enforced by sale of the fixed-rate holding: Rajendra Prasad v. Ramjatan Rai 39 Ind. Cas. 758 : 15 A.L.J. 544 : 39 A. 539. These two cases are decisive against the Plea put forward by the appellants.
7. The result is that the appeal fails. It is accordingly dismissed with costs including in this Court fees on the higher scale.