Lancelot Sanderson, C.J.
1. This is an appeal from the judgment of the learned Additional District Judge of 24-Pergannas, by which he allowed the appeal to him and dismissed the plaintiff's suit.
2. It was a claim for the return of Rs. 1,000, which had been paid by the plaintiff to the defendant in pursuance of a contract for a lease which was to be granted by the defendant to the plaintiff The material part of the contract runs as follows: It was in respect of 103 bighas of land, and the defendant agreed to execute a maurasi mokarari lease on the annual rent of Rs. 200; and the premium was to be Rs. 1,200 and the terms were these: 'I execute this agreement oil receipt of Rs. 1,000 as earnest money on account of salami from you today and promise that on reoeipt of the remaining Rs. 260 from you within the month of Chaitra of the current year, I shall execute and register a maurasi mokarari patni patta in your favour at the said rent and for the said salami.... Be it stated that if for any special reason the said maurasi patni patta is not executed, I shall repay the earnest money which I have taken from you to-day land my heirs and representatives shall be bound by the terms of this deed of agreement.
3. Now, it appears that the defendant had purchased the property from one Chaitan Ghose, and at the time the agreement was made the defendant had deposited with the plaintiff the title-deed in respect of the property. It further appears that Chaitan Ghose had mortgaged 63 out of the 103 bighas to the father of Panchanan and Mahadeb Singh Roy in the year 1311 by means of what is called a usufructuary mortgage. That was for a specific term of years and was to expire, according to the terms of the mortgage, in Baisakh of 1320. At the same time the mortgagee had granted a lease to Chaitan Ghose of these 63 bighas, which was for a specified term and was to continue up to and including the whole of the year 1319. Consequently the position was this: The mortgage was to come to an end at the end of Chaitra 1319 and the lease was to come to an end at the end of Chaitra 1319, that is to say, the lease of Chaitan Ghose, by the mortgagee, and the contract between the plaintiff and the defendant was to be completed within Chaitra 1319. The lease was not completed as was provided by the contract between the plaintiff and the defendant and this suit has been brought for the return of Rs. 1,000 which was paid as premium under the contract.
4. The ground of the claim is stated in paragraphs 4 and 6 of the plaint. The plaintiff there stated as follows: '4. The plaintiff purchased two stamps worth Rs. 32 on the 1st Baisakh 1320 for the execution of the deed. The defendant began to procrastinate for sometime. In the meantime the plaintiff came to know that in Execution Case No. 438 of 1913 of the Court of the 2nd Munsif at Barasat in the District of 24-Pergannas a sale notification had been served on the property through that Court for action-sale thereof on account of the debt incurred by the defendant's vendor before purchase by the defendant of 63 bighas 1 cotta of land'; '6. The Said 63 bighas 1 cotta of land was sold in the said execution case by the Court, mentioned above, in the month of June 1913, far liquidation of the debt due by the defendant's vendor. Then on confirmation of the sale, the auction purchaser received delivery of possession of the same, whereby the defendant's right to and possession over the said property have been prejudiced and become defective. Consequently, the defendant has no right and power to grant a maurasi mokirari lease to the plaintiff in respect of the property and to give possession thereof to him in conformity with the contract of the 29th Falgoon 1319 aforesaid and the plaintiff is also not able and not bound to obtain the said maurasi mokaran lease from the defendant and is not willing to obtain it.' That refers to this fact; I have already mentioned that the mortgagees had granted a lease to Chaitan Ghose. Chaitan did not pay the rent; the mortgagees brought a suit to recover it, got a decree and in execution of that decree bought the tenant's right which Chaitan possessed: and, it was alleged that at the time this contract between the plaintiff and the defendant ought to have been completed the mortgagees were in possession of this land, and consequently the defendant could not give a good title to the plaintiff in respect of the 63 bighas and therefore the plaintiff is entitled to the return of Rs. 1,000: and, the whole question in my judgment, as has really been admitted at the Bar, depends upon the construction of the mortgage-deed which was created between Chaitan Ghose on the one hand and the mortgagees on the other. Now, we had a translation of the material parts of the mortgage placed before us, and I propose to read it: I borrow from you the sum of Rs. 579-8-0; the interest thereon is fixed at the rate of Rte. 1-4-0 per cent, per mensem. For the re-payment of the interest and principal I make an usufructuary mortgage of the said 63 bighns of land with all rights, etc., to you. I let the lands, etc., unto your possession up to 1320 B.S. Out of the profits of the said land, the entire amount of principal and interest will he repaid. You shall possess the said land by letting out the same to tenants and by realisation of the rents from the settled tenants. I make over to you the Kabuliyats executed by the tenants. You shall realise rents from the tenants amicably nr by suit. I do not remain liable for any amount of either the principal or interest. I shall take into my possession the lands, etc., from Baisakh of 1320 B.S. on the expiry of the fixed term and I shall take back all the documents I have made over to you.'
5. The learned Vakil for the appellant has argued that this document is a mortgage and that it is security for the principal and interest which is referred to in the document, and that the mortgagee under the terms of the mortgage was entitled to remain in possession and in fact did remain in possession of the 63 bighas until proper accounts were taken between the mortgagor and the mortgagee and until it was proved that the whole of the principal and interest due under the mortgage had been paid. On the other hand, it was contended by the learned Vakil for the respondent that whether this document was in fact a mortgage, or whether although it was called a mortgage it was in fact a lease for a specified time for a specified consideration, still the terms of the contract between the parties mast be abided by and that the rights of the mortgagee under this document to the property in question did come to an end in Baisakh 1320, and consequently after the end of Chaitra 1319, the mortgagee had in fast no right, title and interest in the 63 bighad, and that the further consequence was that the defendant had a good title in respect of the 63 bighas. We are of opinion that the respondent's contention is the correct one Dr. Dwarka Nath Mitter has drawn our attention to the difference between this case and the case of Nidha Sah v. Murli Dhar 25 A. 115 : 30 I.A. 54 : 5 Bom. L.R. 111 : 7 C.W.N. 289 : 8 Sar. P.C.J. 435 (P.C.), in which case it was provided that there should be no accounts and pointed out that in the document before us there is no similar provision. That is perfectly correct, but we have to construe the document as a whole: and, construing as best I can, giving the words their ordinary meaning, I think it was intended by the parties that the mortgagee should take this land as a security for the principal and the interest, and that he should repay himself out of the profits of the land and he should have the specified time for so doing and that at the end of that time the mortgagee was bound to hand back the property to the so called mortgagor. That being so, inasmuch as the claim in the present case is based entirely upon an allegation that the defendant had no title to the land at the time when his contract with the plaintiff should have been completed, the defendant was not in a position to convey the title as regards the 63 bighas. I think this appeal must fail.
6. The learned Vakil for the appellant has relied upon the last clause in the contract in which it was said: If for any special reason the said maurasi patni patta is not executed, I shall repay the earnest money which I have taken from you to day.' But I think it would be upon his client to satisfy the Court that he had a valid reason upon which he could rely and which would enable him to say that he was not bound to proceed with the contract and, therefore, was entitled to the return of the Rs. 1,000. In my judgment he has not succeeded in showing any valid reason which would entitle him to set up that contention. As I have said before, the only ground set out in the plaint was that the defendant had no title in respect of the 63 bighas. In my opinion the learned Judge has come to a right conclusion that as regard the 68 bighas, at the time the contract had to be fulfilled the defendant had a good title and was in a position to convey good title in respect thereof.
8. For these reasons I think that this appeal should be dismissed with costs.
9. I agree.