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Gojadhar Agarwalla and anr. Vs. Shibananda Pradhani and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in81Ind.Cas.768
AppellantGojadhar Agarwalla and anr.
RespondentShibananda Pradhani and anr.
Excerpt:
transfer of property act (iv of 1882), sections 67, 98 - anomalous mortgage--suit for sale, maintainability of--construction of deed - .....is that the plaintiffs say that their mortgagors have hindered them from getting possession of the mortgaged property and they bring their suit before the expiry of the due date of the mortgage claiming that, by reason of this wrongful conduct on the part of the mortgagors, they have a right not merely to bring a suit to recover possession of the mortgaged property, not merely to bring a suit for a money decree for principal and interest against the mortgagors, but to bring a suit for the realisation of the mortgage security by sale. the first two remedies, they are ex hypothesi plainly entitled to. the sole question is whether they are entitled to the third. i confess that when i first read the judgment now under appeal, it struck rue as extermely paradoxical to hold as a matter of.....
Judgment:

Rankin, J.

1. This is an appeal from the decision of the learned District Judge of the Assam Valley District. The suit was brought by the mortgagees upon a mortgage which the learned Judge describes as admittedly an anomalous mortgage and, in the course of the argument yesterday, that assumption was accepted by both sides. The position is that the plaintiffs say that their mortgagors have hindered them from getting possession of the mortgaged property and they bring their suit before the expiry of the due date of the mortgage claiming that, by reason of this wrongful conduct on the part of the mortgagors, they have a right not merely to bring a suit to recover possession of the mortgaged property, not merely to bring a suit for a money decree for principal and interest against the mortgagors, but to bring a suit for the realisation of the mortgage security by sale. The first two remedies, they are ex hypothesi plainly entitled to. The sole question is whether they are entitled to the third. I confess that when I first read the judgment now under appeal, it struck rue as extermely paradoxical to hold as a matter of construction that the provisions with which I am now about to deal, did not imply a right not merely to obtain a money decree but to obtain the realisation of the security. From the point of view of an English lawyer, there is, I think, no case in which a secured debt becomes due and payable, but in spite of that fact the security is not available therefor. On consideration, however, I am satisfied that, under the Indian Law, the position is very different and the position in the case of the present mortgage is a little complex. The substance of the mortgage is this: First of all, the general description which it gives of itself, is that of a Khai Khalashi or an usufructuary mortgage. That is its broadest feature. But it is not merely an usufructuary mortgage. First of all, there is a provision that the mortgagee is to apply the profits towards the satisfaction of a certain rate of interest. There is a provision then that he is to enter into possession for eight years from the date of the loan. Further, that he shall relinquish possession if, within the said eight years, he is paid off. The document then goes on to say: 'On our failing to discharge the total claim lor principal and interest due upon this bond, you will be entitled with the and of the Civil Court to recover the said total amount of the said principal and interest by selling up the property mentioned in this bond as wrell as our other properties, immoveable and moveable.' That clause occurs immediately after the clause which says that the mortgagee shall be bound to relinquish possession, if within the said terms of eight years the mortgagors discharge the total claim. It is perfectly plain, therefore, that the provision for enforcement by sale of the mortgaged property comes into effect only after the expiration of eight years. That matter having been dealt with, there is a later clause which says: 'If during the term, we creat any obstruction in regard, to your possession, you will, be entitled forthwith to sue for the principal and interest of this bond.' It is contended now that this provision to sue for principal and interest of the bond must be taken either to be a reference back to the previous provision which contains the power inter alia to realize the security or, even apart from that, it must be taken to imply a right to recover the principal and interest out of the security. It is further contended that, assuming that it does not go so far by itself, there is, by virtue of Section 67 of the Transfer of Property Act, a provision which attaches to this right to sue the consequence which gives a right to have a sale. The first thing to observe is that this mortgage while it is not a mere usufructuary mortgage is also not a mere combination of a simple and an usufructuary mortgage. It is not what is sometimes called a simple mortgage usufructuary, but it is an anomalous mortgage within the meaning of Section 98 of the Transfer of Property Act; that is to say, there are elements in the bargain which cannot be brought under either of thosw two conceptions. How far the rights of the parties in the circumstances are intended to extend must in any possible case, apart from Section 98, be controlled by the construction of the document. Section 98 makes it extremely difficult, in a case which is not a mere combination of recognized types, to apply Section 67 at all But it may be that the true construction of a document of mortgage, tafen by itself, would amount very much to the same thing as is effected by Section 67. In my judgment, the moment one finds that in the case of a pure usufructuary mortgage, the consequence of a wrongful interference by the mortgagors with the mortgagee's possession would only be that, under Section 68, the mortgagee would become entitled to a money decree: the moment one finds that and finds that the mortgage, is not a combination of a simple mortgage and an usufructuary mortgage, one must examine the document carefully to see whether one has any right to attack by implication the further consequence of the right to realize the security. In the present case, the pharase 'to sue for principal and interest under the bond' seems to me very much the same thing as the language of Section 68. As a matter of construction, I do not think it refers to the previous clause which is a somewhat elaborate clause and it seems to me that in a case where the parties may or may not have intended the rights of the mortgagee to reach up to this point or to that point, we ought to take the ordinary meaning of the document without giving it a 'wide' or 'benevolent' constuction. After all, it is in the nature of a penalty or stringent provision. 'If during the term we create any obstruction' a certain right is given and that right being stated there 'to sue for the principal and interest under the bond,' it seems to me wrong to extend it by implication unless the implication be very plain. It is quite true that in the case of a mortgage which is a mere combination of a simple mortgage and an usufructury mortgage, the right to sue under Section 68 would give a right to sell under Section 67. That is because the Statute has elaborately defined the contract in that case. The moment one finds that the mortgage is an anomalous mortgage, and that it purports to deal with the question now in point, it is unsafe, to say the least, to rely upon Section 67 at all. For these reasons, although the question is not easy, I think that this appeal fails and, in spite of the vary able argument we have had from the learned Vakil for the appellants, I am of opinion that it must be dismissed with costs.

2. Page, J.--I entirely agree. The document in question in this appeal is obviously and admittedly an anomalous mortgage within the meaning of that term as used in Section 98 of the Transfer of Property Act. Under that section, in the case of an anomalous mortgage,'the rights and liabilities of the parties shall be determined by their contract as evi denced in the mortgage deed and, so far as such contract does not extend, by local usage.' The learned Vakil who appeared and skilfully argued the case on behalf of the appellants, urged that there is no provision under Section 98, and there is no authority to be discovered in the Indian Law Reports, to the effect that the rights and liabilities of the parties to an anomalous mortgage shall be determined only by the terms of the mortgage-deed, and so far as such terms do not extend, by local usage. In my opinion, the language of Section 98 is clear and precise, and it is incumbent upon us to consider what are the rights and liablities of the parties having regard to the provisions of the deed of mortgage. Now, I will refer to two provisions only. The first is this: 'On our failing to discharge the total claim for principal and interest due upon this bond, you will be entitled with the aid of the Civil Court to recover the said total amount of the said principal and interest by selling up the property mentioned in this bond as well as our other properties immoveable and moveable' and, later on, there is found the other provision. 'If during the term we create any obstruction or interference of any kind whatsoever in regard to your possession, you will be entitled forthwith to sue for the principal and interest of this bond.' Now, I agree with my learned brother in holding as a matter of construction, that the latter clause creates special provisions to meet a special contingency, and that this clause is not incidental or referable, to the earlier clause which gives the mortgagee a right to sell the mortgaged property on the failure of the mortgagor to discharge the total claim for principal and interest due upon the bond. Under tjie clause in question, the remedy which is given to the mortgagee is the right forthwith to sue for the principal and interest of the deed; but, on the contingency arising, no power is given to sell the mortgaged property. Therefore, the conclusion at which I arrive is that as there is no power of sale given to the mortgagee under this clause or by local usage, having regard to the terms of Section 98, no such power is to be implied aliunde; and the appeal must be dismissed.


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