1. The instrument of simple mortgage, dated 22nd October 1892, on which the suit is brought by the plaintiff, the mortgagee, for the recovery of the mortgage debt by sale of the mortgaged property, purports to be a zamindari mortgage, the property mortgaged being the zamindari of the mortgagor, described in schedule No. 2 annexed to the mortgage instrument. The operative part of the instrument of mortgage runs as follows:
In respect of the principal, interest, &c;, of this document are (mortgaged) the following: The entire zamindari of Palur, which is situate in Chatbrapur Sub-Registry of Ganjam district, which has passed to our possession from our ancestors, which is in our possession and enjoyment, which yields an annual income of about Rs. 9,975, which is described in detail in schedule No. 2 herein, on which is payable annually a peishkusb of Rs. 22 and a land cess of Rs. 463, and which bears zamindari patta No. 364, together with the hills, jungles, cultivated and uncultivated lands, gardens, sources of irrigation, &c; , therein, as well as with our entire right and income and the kattubadis on enfranchised inam, --these are mortgaged to you subject to the mortgages mentioned in schedule No 2, but they are retained in our possession.
2. Schedule No. 2 specifies the twenty-nine villages constituting the zamindari, with the approximate extent and yearly income thereof, one of such villages (No. 14) being Sabuliya. That village is an inam village of certain Payaks, in which the only right, title and interest which the mortgagor, as zamindar of Palur, possesses, is to the annual payment, by the inamdars, of a fixed kattubadi of Rs. 70, and apparently this is all that is included in the approximate annual income specified in the above schedule. At the date of the mortgage, the zamindar also possessed a mortgage right in the said village, being the assignee, apparently, of a simple mortgage made in 1874, by the Payaks, the inamdars, to one Brindavana Doss, who in 1889 assigned the mortgage to the zamindar.
3. The only question raised and argued in the appeal is whether, so far as the village of Sabuliya is concerned, the only interest therein, which was assigned by way of mortgage, to the plaintiff' is the zamindar's right to kattubadi, or also the mortgage right possessed by the mortgagor, as assignee of the mortgage granted by the inamdars. It is contended on behalf of the appellant that he is a sub-mortgagee, under the zamindar, of the village of Mabuliya, besides being the mortgagee of the kattubadi payable to the zamindar in respect of it. The question we have to decide is, whether the property mortgaged is the zemindari estate of Palur, or the properties of the mortgagor, situate within the territorial limits of the zamindari. The plaintiff in his evidence admits that he was neither informed, nor otherwise aware of the mortgage interest, which the zamindar had in the above village of Sabuliya; but that whatever rights were possessed by him in the said village were mortgaged to him. He also says in his evidence that he cannot say whether the zamindar handed to him the mortgage deed executed by the inamdars and the deed assigning that mortgage to him. There is little doubt that those documents were not handed to the plaintiff, but retained by the zamindar himself. The zamindar, as assignee of that mortgage, brought a suit against the Payaks, the inamdars, in original Suit No. 44 of 1894, and obtained a decree on the footing of that mortgage. The ninth respondent obtained an assignment of that decree and, in execution thereof, became the purchaser, in 1898, of the village of Sabuliya. The plaintiff was not a party to the said suit, and unless the zamindar acted fraudulently in bringing the said suit to enforce the mortgage granted by the inamdars, it is clear that the zamindar did not consider that he had sub mortgaged the village to the plaintiff. Though the zamindar did not intend to assign his mortgage right in the village by way of sub-mortgage to the plaintiff and he did not consider that he had done so when he brought Original Suit No. 44 of 1894, and though the plaintiff himself was not aware of the mortgage right which the zamindar had in the said village and did not obtain possession of the original mortgage deed, yet, if it appeared clearly, from the instrument of mortgage, that all the interests possessed in fact and law by the mortgagor, in the village of Sabuliya, were assigned to the plaintiff by way of mortgage, it is immaterial that the zamindar did not really so intend and that the plaintiff was not aware of the exact interest which the zamindar had in that village. The determination of the question therefore depends mainly upon the right construction of the instrument of mortgage. The transaction purports to be a simple mortgage of the zamindari of Palur. which bears zamindari patta No. 364, and which has passed to the possession of the zamindar from his ancestors, yielding an annual income of about Rs. 9,976 (the particulars of which are given in Schedule 2 appended to the mortgage instrument), subject to a fixed peishkush of Rs. 22, together with the hills, jungles, cultivated and uncultivated lands, gardens, sources of irrigation, &c;, therein, as well as with the zamindar's entire right and income and the kattubadi on enfranchised inams. It is clear that the entire zamindari of Palur, bearing patta No. 364 and subject to a peishkush of Rs. 22, which was mortgaged, is the estate of Palur, which was permanently settled on zemindari tenure under Regulation XXV of 1802. The village of Sabuliya was at the time of the permanent settlement, a jaghir or inam held by the Payaks, subject to the payment of a kattubadi to the zamindar. Under the said Regulation, the permanent settlement was exclusive of the inam (vide Section 4), and included only the kattubadi, which alone was taken as part of the assets of the zamindar.
4. The interests which the mortgagor possessed in the village, at the time of the mortgage, were two-fold --one, the right to the payment of the kattubadi, and the other, his right as a simple mortgagee under the Payaks, the inamdars of the village. The former right alone belonged to him qud zamindar, and was an incident of the zamindari tenure and would be comprised in the expression: 'with our entire right and income'--occurring in the mortgage instrument, The latter right, as mortgagee, he did not possess, qud zamindar, and it was not an incident of the zamindari tenure, i.e.., of the estate as permanently settled under the Regulation. It is evident that the zamindari of Palur is referred to in the mortgage deed, as an estate permanently settled, subject to fine payment of a fixed peisbkush and not in a geographical sense, as comprising every kind of right, title and interest, which the mortgagor may have possessed, within the local limits of the zamindari. This is placed beyond all reasonable doubt, by the express inclusion in the mortgage of kattubadis or quit-rents payable on enfranchised inams, situate within the zamindari limits. Such quit-rents, which were imposed when the inams were enfranchised in this Presidency, are payable to Government, but the right to collect the same appears to have been assigned by Government for administrative reasons to the zamindar himself, in consideration of his undertaking to pay to Government an amount equal to 90 per cent, of such quit-rents, the remaining 10 per cent, being intended as compensation for the trouble and risk involved in the collection of the quit-rent. If the expression 'with our entire right and income' had reference to the zamindari in its geographical sense, and not merely to the estate held on zamindari tenure, the express inclusion of quit-rents on enfranchised inams would be superfluous. But, as the right he had to such quit-rents was not possessed by him, and zamindar, and it did not form an appurtenance of the zamindari, it had to be expressly included, to give effect to the intention of the parties, that the mortgage should comprise also the right to such quit-rents. The parties, therefore, would also have expressly included the zamindar's simple mortgage right in the village of Sabuliya, if their intention was to include that right also in the mortgage. This construction of the instrument of mortgage receives support from the conduct of the parties, in that the plaintiff did not obtain possession of the original mortgage deed, and in that the zamindar himself subsequently brought a suit upon the mortgage deed against the Payaks, in Original Suit No. 44 of 1894. If the instrument in question had been an outright sale of the zamindari and not a mere mortgage, it could hardly be seriously contended that the zamindar's mortgage interest in the village would pass under such conveyance.
5. The case of Rooke v. Lord Kensington 25 L.J. 795 which was cited on behalf of the respondent, is a strong authority in support of his contention. In that case, Lord Kensington, the mortgagor, after specifying certain properties, which were mortgaged, also conveyed by way of mortgage, 'all other, the lands, tenements and here ditaments (if any), in the County of Middlesex.' At the date of the mortgage, the mortgagor was seized in fee of a manor at Killahan in the County of Middlesex; and the question arose whether the mortgage instrument conveyed to the mortgagee that manor also. It was held that it did not, Vice-Chancellor Wood observing as follows: 'I think the clear intent and purport must be held to be simply a sweeping in of other property ejusdem generis with the property which had been so conveyed, if any there should be; certainly not to include a copyhold property, and manorial rights in property of a totally different character from anything attempted to be conveyed or specified throughout the deed.'
6. The appeal fails and is dismissed with costs.