1. This is an appeal by the plaintiff whose suit was dismissed by both the Courts below. The plaintiff is the admitted landlord of the holding in dispute, and he brought this suit to enforce a certain covenant in the kabuliyat by which the tenancy had been created. The kabuliyat is Ex. 1 in the case and had been executed on 5th May 1921, by one Radha Raman Chandra. The clause in question is contained in para. 11 of the dooument and is as follows:
If I or my successors make a gift of, or sell or otherwise transfer the lands of this kabuliyat, then myself and the vendee or transferee of this land will be bound to pay you as chouth one-fourth of the proper price of this land down to heirs and successors; otherwise, the purchase or transfer will not be valid. If the one-fourth amount be not paid as chouth in this manner, then you will be entitled to take khas possession of the lands of this kabuliyat and the title under this kabuliyat will be extinguished.
2. The plaintiff's case is that no chouth was paid under this clause in respect of the transfer of the holding to defendant 1, Tara Nath Dutta, who was the principal contesting defendant in the suit. He accordingly asked for a decree for eviction, and in the alternative, asked for a sum of Rs. 1684-0-7 as chouth. Both the learned Subordinate Judge of Alipur, who tried the suit in the first instance, and the learned Additional Distriot Judge in appeal held that as the transfer to defendant 1 was not an out and out transfer, but by way of a mortgage by conditional sale, it was not hit by clause (11) of the kabuliyat, and that defendant 1 was accordingly not liable to pay any chouth. It was further held that, in any case, the claim was barred by res judicata.
3. The original tenant Radha Raman is not now in the picture. After his death, his widow Sukumari, as guardian of his minor son and heir, sold the holding to defendant 2, Panchu Bala Debi. This was on 4th January 1924. No chouth was paid on this transfer, and the plaintiff was accordingly obliged to bring a suit for recovery of the same, being Money Suit No. 61 of 1927. In this suit, the plaintiff obtained a decree on 19th September 1927 and thereafter in execution of it, purchased the holding on 9th July 1930. The sale was confirmed in due course, and the plaintiff purported to take delivery of possession through Court on 17th November 1930. This purchase by the plaintiff was merely of the right, title and interest of the judgment-debtor. It appears that prior to the sale, Panchu Bala, jointly with her husband, defendant 3, executed a kot kobala or mortgage by conditional sale in respect of this holding in favour of Tara Nath Dutta, defendant 1. The plaintiff's purchase under the decree in Money Suit No. 61 of 1927 was consequently subject to this mortgage. In other words, the plaintiff, though he was the landlord of the holding, acquired merely the equity of redemption from defendant 2.
4. Defendants 2 and 3 failed to redeem the mortgage, and thereupon, Tara Nath commenced a suit for foreclosure of the mortgage, being Suit No. 6 of 1936, making the present plaintiff a party as a subsequent transferee from the mortgagor. A preliminary decree for foreclosure was made in this suit on 30th March 1937, and on 3rd July following, the final decree was passed. The total amount which was declared due under the decree was Bs. 6736-2-4. Defendant 1 thereafter took possession of the holding under the decree. The present suit was accordingly instituted by the plaintiff on 12th May 1938 for eviction of defendant 1, on the allegation that no chouth had been paid by him in terms of Clause (11) of the kabuliyat, Ex. 1, with the result already stated.
5. The question is whether or not, in the circumstances of this case, defendant 1 could be held liable to pay chouth, and, if so, what was the effect of non-payment. Defendant 1 disputed his liability on various grounds. In the first place, it was contended that the transfer to him was not such a transfer as was contemplated in Clause (11) of the kabuliyat. Secondly, it was said that, in any case, defendant 1, having taken his transfer not from the original tenant or his heirs, but from defendants 2 and 3, I who were assignees from the original tenant's heirs, was not bound by the stipulation in that clause. And, thirdly, it was urged that the plaintiff's claim was barred by the principle of constructive res judicata. As the Courts below held in favour of defendant 1 on the first contention, it was not necessary for them to consider the second. In answer to the appellant's case in this Court, all the three grounds were, however, urged before us in this appeal.
6. As regards the first point, the Bengali words in the kabuliyat on which reliance is placed on behalf of the contesting defendant are : 'Dan bikrayityadi hastantar karile.' These words, it is said, contemplate an out and out transfer, either by way of gift or by way of sale, and do not include a transfer by way of mortgage by conditional sale. That may be so and this was in fact the view accepted by the Courts below. It may be further conceded that a mortgage by conditional sale as such does not amount to an out and out transfer like a sale or a gift; such a transaction is in fact distinct from a sale coupled with a condition for a repurchase, inasmuch as it does not pass title forthwith. At the same time, it is hardly possible to deny that a mortgage by conditional sale, although it may not work out into a sale on default of payment on the due date, still implies that the transaction may in a certain contingency ripen into a sale. It may be that in bringing about this result, the intervention of the Court is necessary. All the same, the possibility of an eventual transfer of title to the mortgagee as a result of default cannot be altogether ruled out. A mortgage by conditional sale is no doubt essentially in the nature of a security, and that being so, notwithstanding the form of the transaction, the mortgagor's right to redeem the security will remain, even if the due date of payment may have passed. But once the right to redeem is effectively cut off, there will be nothing to prevent the mortgagee acquiring full title to the property. The mortgagee will, of course have to bring a suit to foreclose the mortgage, but we do not think that that circumstance is sufficient' to detract from the fact that the mortgagee will be acquiring title to the property by reason of a voluntary act on the part of the mortgagor. In our' opinion, where a person executes a kot kobala or mortgage by conditional sale, and then suffers a foreclosure decree to be passed against him, he virtually executes thereby a transfer in favour of the mortgagee. In this view of the matter we do not think that defendant 1 could escape liability for payment of the chouth under the terms of the kabuliyat, if he was otherwise liable, merely on the ground that he acquired the property directly as a result of the Court proceedings under the foreclosure decree. The mortgage by conditional sale, followed by the decree for foreclosure, and the taking of possession thereunder did, in our opinion, constitute such a transfer as was contemplated in Clause (11) of the kabuliyat.
7. Turning to the next question as to whether defendant 1 was otherwise liable, the contention is that the stipulation was not binding on this defendant, because he was not a party to the kabuliyat. It was argued that, in any case, on the wording of the clause, the stipulation was binding as between the plaintiff on the one hand, and the original tenant and his heirs on the other, and that it could not bind a transferee from the original tenant, or from any of his heirs. In answer, it is sufficient to-refer to Clause (15) of the kabuliyat, which expressly lays down that all the terms and incidents of the kabuliyat will be operative and hold good as between the parties themselves and as between their respective 'heirs, successors and representatives. Apart from that, it was conceded on behalf of defendant 1 in both the Courts below, and the trial proceeded on the basis, that the stipulation in question amounted to a covenant running with the land. It will b& observed that the kabuliyat contained an express, proviso for re-entry in default of payment of chouth. From that point of view, even treating the clause as a mere restrictive condition against assignment, it is quite clear that this would be sufficient to invalidate a transfer in breach of such condition. It cannot be disputed that the clause was perfectly valid and legal, and we see' no reason therefore why it should not be held to be binding on all persons deriving title through or from any of the original parties to it. The second contention on behalf of defendant 1 must, therefore, be also overruled.
8. It is next urged that the plaintiff's claim is barred by res judicata. This contention is based on the fact that in the suit brought by defendant 1, he had joined the present plaintiff as apart, and it appears that the plaintiff did put forward a claim to chouth in his written statement. In view of this claim the plaintiff was, in fact, called upon to pay the proper court-fee, but this was not paid, and the claim, accordingly, was not gone into. It is now contended that the claim to chouth having been thus set up and then abandoned in the previous suit, it is no longer open to the plaintiff to maintain the present suit for the same relief. In any case, it is argued that the matter is one which, on the plaintiff's own showing, might and ought to have been raised in the previous suit, and, not having been raised, would still operate as res judicata under Expl. 4 of Section 11, Civil P.C.
9. This argument, in our opinion, betrays a confusion of ideas. It overlooks the essential fact that the present suit is instituted by the plaintiff in his capacity as landlord, whereas he had been impleaded in the foreclosure suit in a different capacity altogether. As stated above, the present plaintiff had obtained a decree for money against defendant 2 on account of chouth, and it was in execution of that decree that he purchased the right, title and interest of that defendant in the holding in dispute. It was in consequence of such purchase, that defendant 1 had made the plaintiff a party to his suit. In fact, it is obvious that the landlord as such could possibly have no place in a suit for foreclosure in respect of a mortgage executed by the tenant. The only proper and necessary parties to such a suit would be the mortgagee, on the one hand, and the mortgagor on the other or persons having a right in the equity of redemption. The landlord of the holding could not be possibly brought within this category. It may be that the present plaintiff, though made a party in the suit as a subsequent transferee from the mortgagor, did yet put forward a claim for chouth. But this was a matter wholly outside the scope of the suit, and in any case, it is clear that the claim would have been premature at that stage, the foreclosure decree not having yet been passed. In these circumstances, we cannot agree with the Courts below that there was any scope for the application of the doctrine of constructive res judicata. The result is that this contention on behalf of the respondent must also be overruled.
10. The next question is as to the effect of the nonpayment of chouth by defendant 1. As already pointed out, the kabuliyat expressly provides that if the chouth was not paid, not only would the transfer be invalid but also the landlord would have the right to re-enter. There can be no doubt, therefore, that in the events which have happened, defendant 11 made himself liable to eviction. The liability to pay chouth accrued on the date the foreclosure decree was made. In so far as chouth was not paid by him on that date, he must be deemed to have been in possession since as a trespasser. There will accordingly be a decree against defendant 1 for his eviction and for mesne profits with effect from the said date until possession is delivered by him, but in the circumstances of the case, we think that we ought to relieve him against eviction, if he should still be prepared to pay the chouth with interest at 6 per cent, per annum with effect from the date of the foreclosure decree.
11. In the view which the Courts below took, it was not necessary for them to ascertain the amount of the chouth. Instead of directing a remand on the point, the parties agree that the amount which should be payable on account of the chouth including interest should be assessed by us at a reasonable figure. We consider that Rs. 1250 would be fair, and we, accordingly, make a decree for this amount. If half of this amount is paid by the end of Aswin 1349 B.S., defendant 1 will have time till the end of Chaitra following to pay the balance. If there is default in payment of one or both of these instalments, the plaintiff will be entitled to enforce the decree for eviction, and mesne profits as directed above. This appeal is thus allowed with costs in all the Courts.
Mohamed Akram, J.
12. I agree.