1. This is an appeal by the defendants against a decision of the Subordinate Judge of Mozaffarpur, reversing a decision of the Munsif in a suit, in which the plaintiffs claimed certain principal money lent to the defendants on what is alleged to be ah usufructuary mortgage of certain lands. The first Court decided in favour of the defendants but on appeal the plaintiffs were successful and got a decree for the money claimed. The document under which the money was advanced by the plaintiffs to the defendants has been placed before us. It recites the reason for which the defendants borrowed the money and it goes on to say: In lieu of interest of the said amount I give in sudhbhurna 6 bighas, 15 cottas zerait khas in the entire 11 plots as per boundaries given below situated in 16 gds 1 k. pucca share out of a privately partitioned patti of 8 annas out of 16 annas Mouzah Baligaon Pergana Luresa Touzi No. 7654,' and it farther says, 'which is now in my possession, from 1298 to 1304 F. for a period of 7 years and have placed the said creditors in possession of the Bhurna property, the said creditors are to remain in possession either by making zerait khas or by settlement with others and appropriate the profits thereof in lieu of interest to which neither I nor my heirs and representatives shall raise any objection'. Then it says: On the expiry of the said period that is, on the 30th Bysak 1304 Fasli, having paid the said principal amount in one lump sum to the said Bhurnadars, I will take back this document, if on the other hand I am unable to pay the money on the expiry of the said period in that case till the payment of the said money the possession of the Bhurnadars will remain in force with all these above conditions.'
2. This is the agreement entered into between, the plaintiffs and the defendants and the plaintiffs entered into possession of 6 bighas, 15 cottas in question and they remained in possession for 7 years. At the end of 7 years the defendants did not repay the money and so the plaintiffs continued in possession. The estate was partitioned and the 6 bighas, 15 cottas fell into the share of a person other than the defendants and the result was. that that person took possession and some where about the year 1905 the plaintiffs were (sic) out of the 6 bighas, 15 cottas (sic) brought this action because they (sic) security they had.
3. It is contended on behalf of the defendants appellants, first, that they are not liable to pay personally because there is no covenant in that document to repay and, secondly, that the defendants are quite willing to give the plaintiffs the security of the plot which has fallen to their share on partition and further it is argued that the plaintiffs took the, land subject to the risk of its passing out of the defendants' possession by partition and that under the Batwara Act, Section 99,any liability which had attached, to this land would attach to the new plot and the defendants say that the plaintiffs must be content with that I am unable to agree in the view put forward by the appellants. In the view that I take it is unnecessary to discuss the .first point, namely, whether the words I have read out from the document do or do not amount to a personal covenant to repay the money lent and, therefore, it is needless to consider whether I should be prepared to follow, the decision in the case of Luchmeshor Singh v. Dookh Mochan Jha (sic). I say it is unnecessary because the case is met by Clause (c), Section 68 of the Transfer of Property Act. By that section it is enacted that a mortgagee has a right to sue the mortgagor for the mortgage money, where the mortgagee, being entitled, to possession, of the property, the mortgagor fails to deliver the same, to him, or to, secure, the possession thereof to him without disturbance by the mortgagor or any other preson. Here the possession of the mortgagees has been disturbed by another person because, they have been turned out of possession of the laud which they have been given by the mortgagors. They therefore, come within the terms of Clause (c) to Section 3 of the Transfer of Property Act. They are entitled under the deed to possession of the 6 bighas, 15 cottas therein described. They were, put in possession but the possession was not secured to them because they had been disturbed and turned out by a third party. I think, therefore, they are entitled to bring this action for the mortgage money. The argument which is addressed to us that Section 99 of the Batwara Act applies and that any burden that there was on the land attached (sic) the new share. I do not think that (sic) section applies. I think it does not this reason. That section deals (sic) in which a proprietor of an estate held in common tenancy and brought under partition in accordance with the Act has given his share or a portion, thereof in putni or other tenure or on lease or has created any other encumbrance thereon, but such tenure, lease or encumbrance shall hold good as regards the lands finally allotted to the share of such proprietor and only as to such lands. The reason I do not think it applies is because in this case the proprietor of an estate has not given his share or a portion, thereof. His share may be so many annas and so many pies. He might have given out of that such fraction as he thought proper. He did hot do so: but what he did was to give certain definite and specific lands marked by metes and bounds and that being so. I do not think that it comes within the section. The plaintiffs are perfectly-entitled to bring this suit when they lost possession of the land.
4. The judgment and decree of the lower appellate Court are perfectly right and the plaintiffs, are entitled to a decree. The appeal is, therefore, dismissed with costs.
5. The appellants have neither merits nor law in there favour. They contracted a debt and there was a certain term of about 7 years after which the arrangement about the payment of interest might cease upon the amount being repaid. The term fixed has expired and it is not fair for the appellants to contend against a decree being given to their creditors for the money lent to them. The creditors lent the money and in lieu of interest had the possession of certain lands. The selection of these lands might have been made on various grounds of personal convenience. The lands which the appellants now offer may not have the same advantages. At all events the substitution of other lands for the lands previously given would be a matter of arrangement between the parties and since the parties disagree, it would be for the creditors to say that they will take this and not that and it is not for the debtors to insist upon any particular lands being taken.
6. As regards the argument of law pressed before us I have had the document read in the original and in the translation and I am not prepared to say that reading it as a whole, it does not contain a covenant to pay after the period of seven years. But it is not necessary to come to any decision on that point because on the other ground, namely that of (sic) of securities urged on behalf of the appellants, they are bound to fail. In this case certain lands by metes and bounds were given as security. The appellants were entitled to a particular share in the mauzah and the lands given in Sudhburna were part of the lands held by them in khas possession. By the batwara that has taken place of the mauzah they have obtained other lands but there is nothing to show what particular lands have been substituted for the land given in Sudbharna. If the whole share or any portion of the share owned by the appellants had been mortgaged and if the whole share or portions thereof had been represented after the partition by another whole share or another property, then the case might come within the principle of the decision of the Privy Council in the case of Byjnath Lal v. Ramoodeen Chowdhry I.A. 106 : 21 W.R. 233. But that is not the case here. The lands are entirely different, there is nothing to fix the identity of the security and the creditors are not bound to receive the lands now offered. If the appellants pay the decretal amount they are at liberty to retain their property whether it is valuable or not and I think that they have no grounds to complain if a decree is given against them.