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Kumar Kulanand Singh and anr. Vs. Mohan Mandar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in25Ind.Cas.500
AppellantKumar Kulanand Singh and anr.
RespondentMohan Mandar and ors.
Cases ReferredGirdhar Das v. Ram Autar Singh
Excerpt:
mortgage - sudhharna bond--usufructuary mortgage, conversion of, into simple mortgage--lien on property previously mortgaged usufructuarily, nature of--principal and interest--charge, extinguishment of--sale of mortgaged property in execution of third person's decree--mortgagee, right of. - .....passed to the defendant 4th party. he, however, claimed a lien upon the said properties under an earlier bond (sudhharna bond) dated the 23rd december 1901, which covered the properties purchased by the defendant 4th party.2. both the courts below have held that although the usufructuary bond dated the 23rd december 1901 had been converted into the simple mortgage bond now sued upon, the intention of the plaintiff was to keep alive the lien under the earlier bond and that the property purchased by the defendant 4th party was subject to this lien. the defendant 4th party has appealed to this court.3. it has been contended on behalf of the appellant that the lands under the sudhharna bond were to be enjoyed in lieu of interest only and, therefore, the lands were security for interest.....
Judgment:

N. Chatterjea, J.

1. This appeal arises out of a suit upon a mortgage bond dated the 16th February 1905 executed by the defendant No. 1 in favour of the plaintiff against the mortgagor and certain other persons who claimed interests in the properties mortgaged. The defendant 4th party had purchased some of the properties at a sale held in execution of a decree against the defendant No. 1 on the 4th January 1905 prior to the date of the bond upon which the plaintiff sued. The plaintiff, therefore, could not enforce his mortgage against the properties purchased by the defendant 4th party upon a bond executed by the defendant No. 1 at a time when his title to such properties had already passed to the defendant 4th party. He, however, claimed a lien upon the said properties under an earlier bond (sudhharna bond) dated the 23rd December 1901, which covered the properties purchased by the defendant 4th party.

2. Both the Courts below have held that although the usufructuary bond dated the 23rd December 1901 had been converted into the simple mortgage bond now sued upon, the intention of the plaintiff was to keep alive the lien under the earlier bond and that the property purchased by the defendant 4th party was subject to this lien. The defendant 4th party has appealed to this Court.

3. It has been contended on behalf of the appellant that the lands under the sudhharna bond were to be enjoyed in lieu of interest only and, therefore, the lands were security for interest only and not for the principal, that in case the lands were sold for debts due to other creditors and also in certain other events the mortgagees would be at liberty to realize the money from the sudhharna property and that the lessee shall be held liable for the debt and similar other provisions. It seems to me that the lands were given as security not only for interest but for principal also.

4. The next contention is that the lien under the earlier bond was extinguished by the bond in suit. It has been argued that the first bond was an usufructuary mortgage bond under which the mortgagee was to enjoy the profits of the property in lieu of interests The principal money was Rs. 200 and only 5 bighas of lands were mortgaged; whereas the bond sued upon was a simple mortgage bond for Rs. 300 bearing interest at Rs. 2 per cent per month and 15 bighas of lands (including the 5 bighas mortgaged under the earlier bond) were mortgaged. The earlier bond was satisfied by the bond in suit; and these circumstances are relied, upon as showing that the lien under the earlier bond had been extinguished. These facts, however, do not show that the mortgagee intended to give up his lien for Rs. 200 in respect of the 5 bighas of land mortgaged under the earlier bond, in favour of an intermediate purchaser. The conversion of the sudhharna bond into a simple mortgage bond merely indicates a change in the form of the security: In the sudhharna bond there was a distinct covenant to pay--'I promise that I shall pay the said sum in the month of Baisak 1311.' It was not a pure usufructuary mortgage as defined in Section 58 of the Transfer of Property Act, and a suit could be maintained for sale of the mortgaged property upon the bond see Sivakami Ammal v. Gopala Savundram Ayyan 17 M. 131 (F.B.) : 4 M.L.J. 50 . By the second bond the debt due under the sudhharna bond was paid off as also some other debts. But the mere fact of a charge having been paid off does not decide the question whether it is extinguished. The fact that the second bond was for a larger amount and additional properties were mortgaged, would not also go to show that the lien of Rs. 200 over the properties which were covered by the earlier bond was intended to be given up.

5. The properties mortgaged in the second bond were stated therein as unencumbered, which I think means that there was no mortgage of any other person, and the obvious intention was that the mortgagee was to have the first and only charge. The facts relied upon do not show nor is there any. thing in the document to show any express intention to extinguish the lien under the bond and in the absence of any such express intention, it is to be presumed that the mortgagee intended to keep the earlier lien alive for his benefit see Gokaldas Gopaldas v. Puranmal Premsukhdas 10 C. 1035 : 11 I.A. 126 .

6. The fact that the mortgagee was not aware of the purchase by the defendant 4th party does not affect the application of the above principle see Girdhar Das v. Ram Autar Singh 8 C.W.N. 690 .

7. But the Courts below have held that the intention was to keep alive the earlier mortgage and I am of opinion that the plaintiff by taking the mortgage bond dated the 16th February 1905 did not intend to extinguish his lien under the earlier bond for the benefit of the intermediate purchaser, the defendant 4th party. The second contention accordingly fails.

8. Lastly it is contended that even if the lien under the earlier bond was not extinguished, the plaintiff can set up his lien only for Rs. 200 in respect of the 5 bighas of land covered by the earlier mortgage. I think this contention should prevail. The first bond was a sudhharna bond, and the plaintiff under that bond was to enjoy the profits of the property in lieu of interest and when the present bond was executed only Rs. 200 was due under that bond. There was no provision for payment of interest at the rate of 2 per cent, as stipulated in the bond sued upon or at any other rate, and the plaintiff voluntarily gave up possession of the property which was to be enjoyed by him under the earlier bond in lieu of interest. Interest at 2 per cent, was payable under the earlier bond only in case the mortgagee was dispossessed of the property mortgaged and on certain other contingencies which have not happened. The present suit is for sale of the mortgaged properties and I think the plaintiff cannot claim a lien for interest which was payable under the earlier bond in a particular mariner, viz., from the usufruct of the property when the plaintiff voluntarily gave up possession of the property and abandoned the only mode in which he could claim interest under that bond. He cannot claim any lien under that bond except for Rs. 200 which was due under it when the simple mortgage was executed.

9. The decree of the lower Appellate Court is accordingly varied. The properties purchased by the defendant 4th party will be liable only to the extent of Rs. 200. The costs of the lower Courts against the said defendant will be reduced in proportion. In all other respects that decree will be confirmed. Bach party will bear his own costs of this appeal.


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