1. The undisputed facts are that the 1st defendant executed a deed of mortgage to the plaintiff which was not in proper form owing to want of attestation, After the mortgage, the plaintiff was in possession for some time and then he was dispossessed by defendants Nos. 2 to 4 who claimed the property by title paramount. There is no allegation that the 1st defendant aided or abetted these other defendants in depriving the plaintiff of his possession. Under these circumstances, plaintiff would not be entitled to sue for the mortgage money as such even if the mortgage was in proper form. Reliance was placed upon Bam Narayan Singh v. Adhindra Nath Mukerjee I.L.R. (1916) C. 388 : 92 M.L.J 39 for the proposition that even though plaintiff may not be able to assert his claim as mortgagee, he can claim the money advanced by him on the footing that the mortgagor should refund it, In the case before the Judicial Committee the mortgagor had taken active steps to deprive the mortgagee of his possession. To such a state of circumstances Clause (b) of Section 68 of the Transfer of Property Act would in terms apply, provided the mortgage was otherwise enforceable; but the Judicial Committee held that even though the mortgage qua mortgage was not valid, the mortgage money was recoverable. We are not prepared to extend the reasoning of that decision to a case where the mortgagor has done no act to deprive the mortgagee of possession.
2. Then it was contended that the case fell under Clause (c) of Section 68, inasmuch as the mortgagee was deprived of his security, by a stranger. If that is taken to be the finding, then, before suing the mortgagor for the money, the mortgagee ought to have called upon the mortgagor to furnish some other security-equivalent to the one which he was dispossessed of.
3. The last argument related to Clause (b) and it was contended that as the mortgagor did not when called upon defend his title against defendants Nos. 2 to 4, he must be deemed to have been guilty of default which resulted in depriving the mortgagee of his possession. But the default referred to in Clause (b) must be anterior to the deprivation. The failure to get back lost possession is not within the clause. In Bola Nath v. Hara Mohan 7 Ind.Cas. 251 the default was a the date of the mortgage. We are not however to be understood as deciding that the failure to observe the conditions mentioned in Section 68 would amount to default on the part of the mortgagor.
4. We therefore agree with the lower Courts' conclusion, though not with the reasons given by either of them. In the circumstances of the case, we permit the plaintiff to withdraw the suit with liberty to bring a fresh suit for the money, if he is otherwise entitled to it, on his paying all the costs of the 1st defendant incurred up to date within two months from now.