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appellate Court in that case, in passing its decree of the 15th January
1885, had, no doubt, power to decline to extend tbe period, as was
held by the Full Bench in Sheo Pershad Lai v. Thakoor Rai (l), to which
I referred, and, as a Court executing a decree, declined either to hold that
the decree, in fixing a period for payment of price, was illegal, or that
the period of one month which it prescribed could be extended by the
Court executing the decree. The argument that the period of one month
should be calculated from tbe final appellate decree of the 15th January
1885, could not very well be pressed in that case (as indeed it was not
pressed) in favour of the pre-emptor decree-holder, because, as I have
already said, even, upon that calculation his deposit of the price on the
16th February 1885 was beyond time. Tbe case is therefore distinguish-
able from the present case.

The real difficulty in connection with pre-emption decrees, and spe-
cially with reference to the point which has given rise to this reference,
arises in considering whether such decrees, which are usually passed, or
which purport to be passed, under s. 214 of the Code of Civil Procedure
are decrees in the nature of decrees nisi or decrees absolute in the same

(1) N.W.P.H C.R. (1868) 254. (2) 2 A. 744. (3) 8 A.W.N. (1833) 4.

119



13 All. 192 INDIAN DECISIONS, NEW SERIES [Yol.

1889 manner as in any other class of cases where the decrees may, by force of

DEC. 10. equity, be subjected to considerations and limitations of amount or time

as to payment of money as a condition precedent to the recovery of

FULL possession, or subjected to other restrictions which the Court may deem

BENCH, fit to impose. This is a matter which I had to bear in mind in Rup

Chand v. Shamsh-ul-Jehan (1), and I dealt with the matter in a suit for

4 n W 4 QQ

pre-emption it?plf, dealing with it much upon the same principles as those
(F.B.j. governing other conditional decrees passed in suits where the possession of
[192] immoveable property is subjected to conditions. I think it is enough
to say, in order not to delay or prolong my judgment, as I have already
explained my ruling in Chhilda v. Imdad Husain (2) and the ruling in
Eup Chand v. Shamsh-ul-Jehan (1) that no distinction of principle really
exists, and it is only because the learned Judge of the lower appellate Court
misapplied the former ruling that he considered the ruling relieved him of
the duty of trying the suit upon the merits. I think the rule, which was
laid down in Rup Chand v. Shamsh-ul-Jehan (l), is a rule which should
govern this case, consistent as it is with the principle of the Calcutta
Court ruling in Noor Ali Chowdhuri v. Koni Meih (3), and the Bombay
Court ruling in Daulat and Jag Jivan v. Bhukandas Manek Chand (4), to
both of which I referred in the casa. I am also glad that the conclusions
arrived at in this case by me are wholly consistent with those arrived at
in the judgment which has just been delivered. I therefore agree in the
order which has been made in the case by my brother Straight

EDGE, C.J. In concurring with the judgment which has heon deli-
vered by my brother Straight, I should say that I understand that judg-
ment to be in no way based upon any cases referred to in che judgment
just delivered by my brother Mahmood. As to these cases and the infer-
ences to be drawn from them I decline to express any opinion. I am of
same opinion as my brother Straight.

BEODH'URST, J. I concur with my brother Straight.

TYRRELL, J. I also concur with my brother Straight, without
expressing any opinion on the cases just referred to in his judgment by my
brother Mahmood.

Appeal decreed.



13 A. 193 = 11 A.W.N. (1891) 83.

[193] APPELLATE CIVIL.

Before Mr. Justice Straight and Mr, Justice Young.



RADHA PRASAD SINGH (Plaintiff) v. PERGASH RAI
(Defendant).* [24th April, 1890.]

Act XII of 1881 (North-Western Provinces Rent Act\, s. 189 Act XIV of 1886 (amend-
ing Act XII of 1881), s. 5~" Bent payable by the tenant" Appeal.

The words "rent payable by the tenant" in s. 189 of the North-Western Pro-
vinces Bent Act (XII of 1S81J (as aruuaded by Act XIV of 1886) mean the rate
of rent payable by the tenant und mi merely the actual amount of money which
is due at any given time by the tenant to his landlord as rent.

[F., 14 A. 50 (51) = 11 A.W.N. 219 ; R., 21 A 247 (250) = 19 A.W.N. 47.]

* Second Appeal, No. 756 of 1888, from a decree of G. J. Nioholls, Esq., District
Judge of Qhazipur, dated the 17th February, 1888, modifying a decree of Maulvi
Muhammad Wasi, Deputy Collector ot Ghazipur, dated the 26th August 1887.

(1) 11 A. 346. (2) 8 A.W.N. (1688; 4. (3) 13 G. 13. (4) 11 B. ll~2

120



YII]



RADHA PRASAD SINGH V. PERGASH RAI 13 All.



THE facts of this case sufficiently appear from the judgment of
Straight, J.

Hon. G. T. Spankie and Pandit Sundar Lai, for the appellant.

Munshi Kashi Prasad and Munshi Jioala Prasad, for the res-
pondent.

JUDGMENT.

STRAIGHT, J. This second appeal relates to a suit brought by the
plaintiff- appellant against the defendant-respondent for arrears of rent
amounting to Es. 88-1-0; in resoect of 1292, 1293 and 1294 Fasli. The
case was heard by an Assistant Collector of the first class, and he decreed
the claim in part upon the 26tb August 1887. The only question before
us is with regard to the language of s. 189 of the Kant Act, as it now
stands, whether any appeal lay to the Court of the District Judge. The
answer to this objection, if anv can be found, is contained in
s. 189. Now it is material to remember, in considering this question
that until 1886 the words " or in which the rent payable by the
tenant has been a matter in issue and has been determined," were
not in the rent law then in force, and that they were introduced in
that year Toy s. 5 of Act XIV of 1886. It is contended by Pandib
Sundar Lai that tho words " rent payable by the tenant," mean the
" rate " of rent payable by the tenant, and that the appeal which is here
in express terms given by this section is an appeal limited to cases in
which the Court of first instance has determined the rate at which a
[194] tenant is to pay rent. On the other side Mr. Jwala Prasad argues
that these words give a general power of appeal and that in every case in
which the " amount " of rent payable by a tenant comes into question, that
tenant, if unsuccessful, has a right of appeal to the Judge. I cannot
accept this view. It seems to me that if the Legislature had intended to
throw open the door indiscriminately to appeals of that description it
would have been not merely inartistic drafting but surplusage to add these
amending words, when the section might have been framed in such a way
as to give a right of appeal, irrespective of any question of amount or
value. I think signifinance is to be attached to the words " has been a
matter in issue and has been determined, " because that would cover a
case in which, though the amount claimed by a landholder was below the
sum of Es. 100, yet, if the rate of rent was in issue in that suit between
himself and his tenant, and the rate of rent had been determined
in that suit by a Court of first instance, there would be an appeal,
It seems to me clear that according to the language of s. 189 the only
instances in whicn an appeal lies to che District Judge are the follow-
ing : (l) Where cbe amount or value of the subject-matter exceeds
Es. 100. (2) Where the rent payable by a tenant has bean a matter in
issue and has been determined, and, lastly, where the proprietary title
to land has been determined between parties making conflicting claims
thereto. All these matters may well be made the subject of an
appeal to the District Judge as involving important considerations ; the
question as to the rate of rent being one which would, as between the
landlord and the tenant, as a matter of res judicata, bind them as to the
rate of rent payable by the one to the other for all subsequent time. By
this, of course, 1 mean until an alteration made by agreement between the
parties or by the act of a Court properly empowered under the statute
has taken place. I do not think, as at present advised, that the amend-
ment was intended to flood the Courts of District Judges with appeals on



1890

APRIL 21.

APPEL-
LATE
CIVIL.

13 A. 193 =

11 A.W.N.

(1891) 83.



A VII 16.



121



13 All. 195 INDIAN DECISIONS, NEW SERIES [Yol.

1890 pure questions of the amount of money in the shape of rent due from a

APRIL 24. tenant to his landlord. This being the view that I take of the matter, I

am of opinion that no apoeal lay from the Assistant Collector's decision

APPEL to the District Judge, and that this [195] appeal must be decreed, and,

LATE the decree of the District Judge being set aside, that of the Assistant

ClVIL. Collector must be restored, with costs to the successful parby in propor-

tion to his success in all Courts.

13 A. 193= YOUNG, J. I concur.

11 A.W.N. Appeal decreed.

(1891) 83. [A similar interpretation was placed upon the abova-mantioned

section of the N.-W.P. Rent Act by Edge, C. J., and Brodhurst, J., in
the case of Bhagwnn Din v. Mosai, Second Appeal, No. 431 of 188B,
decided on the 4th February 1890 W.K.P.]

13 A. 195 = 10 A.W.N. (1890) 228.

APPELLATE CIVIL.
Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Brodhurst.



ANANDI RAM AND OTHERS (Plaintiffs) v. DUR NAJAP ALI BEGUM

(Defendant)* [27th June, 1890.1

Mortgage Payment of Government revenue bi/ mortgagees in possession to save the
property Payment of mortgage-money into (Jourtby mortgagors and relinquishment
of possession by mortgagees Subsequent siiit by mortgagees to recover thi Gavern-
ment rtvtune paid by them by sale of the mortgage! property Act IV of 1882
(Transfer of Promrty Act), s. 83,

The plaintiffs were mortgagees in possession of certain shares in a village under
a mortgage which, as to the principal amount advanced, was a simple mortgage,
as to the interest a usufructuary mortgage. The mortgagees, to save the property
from sale, paid up certain arrears of Government revenue. Subsequently, the
defendant, who was the representative of the mortgagors, under s. 83 of the
Transfer of Property Act (IV of 1882), paid the original sum due under the mort-
gage into Court. Tha mortgagees withdrew the money so paid in and deposited
the mortgage-deed in Court. The mortgagees then, after relinquishing posses-
sion of the mortgaged property, sued to recover the money which they had paid aa
Government revenue by sale of the mortgaged property.

Held that though the mortgagees might originally have treated the amount
paid by them as Government revenue as part of the mortgage-money, they did
not by such payment obtain a lien independently of their position as mortgagees,
and when once they had abandoned their lien on the mortgaged property by
accepting the money paid into Cburt by the mortgagors and by relinquishing
possession of the mortgaged property, they could not afterwards revive it; and
their suit, which was for realization of the Government revenue paid by them,
by sale of the mortgaged property, must fail.

[1963 Semlle, a mortgagee, who had given up his lien under circumstances
similar to those above described, might; bring a simple money suit to recover
money paid by him to save the property from sale in execution for arrears of
Government revenue.

KinuRam Dasv. Mozaffer Hosain Shoha (1); Lachman Singhv. Salig Ram (2) ;
Achut Ramchandra Pai v. Hari Kamti (3> ; Gtrdhar Lai v. Bhola Na(h (4) ;
Parsotam Das v. Jaijit Singh (5) ; Nikka Mai v. Sulaiman Shaikh Cirdner (6);
Kristo Mohinee Dossee v, KaUprosono Ghoss (1) ', and Nugenderchun<ier Gliose v.
Sreemutty Kaminee Dossee (8) referred to.
[R.,22 M. 332 (336).]

' Second Appeal, No. 1266, from a decree of T. R. Redfern. Esq., District Judge of
Bareilly, dated the 1st May 1888, reversing the decree of Maulvi Abdul Kayyum, Subor-
dinate Judge of Bareilly, dated tbe 15th November 1887.

(1) 14 C. 809. (2J 8 A. 384. (3) 11 B. 313. (4) 10 A. 611.

(5) 10 A.W.N. (189C) 90. (6) 2 A. 193. (7) 8 C. 402.

(8) 11 M.I. A. 241.

122



YII] ANANDI RAM V. DUR NAJAP ALI BEGUM 13 All. 197

THE facts of this oase are fully stated in the judgment of the Court. 1890

Mr. Boshan Lai and Babu Durga Gkaran Banerji, for the appellants. JUNE 27.
Munshi Madho Prasad and* Mir Zahur Husain, for the respondent.

A -p-p-p T

JUDGMENT. LATE

EDGE, C. J., and BRODHURST, J. The suit out of which this appeal
has arisen was one in which the plaintiffs sought a decree for sale against
certain shares in a village under the following circumstances. The plaintiffs 13 A. 198 =
were mortgagees of the shares in question. The mortgage was a simple 10 A, W.N,
mortgage, so far as the principal was concerned, and a usufructuary mort- (1890) 228.
gage so far as the interest on the principal moneys lent was concerned. The
plaintiffs, whilst they were in possession as usufructuary mortgagees, paid
certain arrears of the Government revenue due in respect of those shares.
It may be taken that those payments were made to piotect the mortgaged
property from sale under s. 166, of Act XIX of 1873. If tbos'e arrears
had not been discharged and the property had been sold under s. 166,
s. 167 would have applied, for the purchaser would have taken the property
free from any incumbrance, except those, if any specified in clauses A
and B of that section. After those payments were made, the defendant,
who is the representative of the mortgagors, paid into Court, under s. 83
of the Transfer of Property Act, Es. 25,000 which was the amount which
had been advanced under the mortgage. Upon that the plaintiffs presented
a petition saying that they would take out the Es. 25,000 in satis- [197]
faction of the mortgage, and they would in future claim the money
paid in respect of arrears of the revenue. They also deposited in Court
the mortgage-deed and obtained the payment out to them of the Es. 25,000.

The first Court decreed the claim to some extent. The District Judge
of Bareilly dismissed the claim altogether. We should mention that it
was provided in the mortgage-deed as follows : " At the time of the settle-
ment whatever reduction or enhancement may happen in the Govern-
ment revenue we mortgagors take upon us." The arrears of the revenue
which were paid by the plaintiffs represent an enhancement within the
meaning of that clause in the mortgage-deed. Mr. Durga Gharan, who
has argued this case very fully and with much ability, has contended
that his clients, the plaintiffs-appellants here, upon payment of those
arrears of the revenue, obtained a charge in equity upon the property and
a charge which was quite independent of the mortgage which they had
held : further, a charge in enforcement of which they are entitled to a
decree for a sale of the property, notwithstanding their having abandon-
ed their lien under the mortgage. He has cited to us a great number of
authorities, most of which are referred to in the case of Kmu Ram Das v.
Mozaffer Hosain Shaha (1). Those authorities which he has cited to us
which do not appear to be referred to specifically in that case are the
cases of Luchman Singh v. Salig Bam (2) ; Achut Bamchandra Pai v.
Hari Ramti (3) ; Girdhar Lai v. Bhola Nath (4) ; Parsotam Das v. Jaijit
Singh (5) ; Nikka Mai v. Sulaman Sheik Gardner (6). There is no
doubt that, with the exception of the case of Kristo Mahinec Dassee v.
Kaliprosono Ghose (7), and the case of KinuBam Das v. Mazaffer Hosain
Shaha (1), there seems to have been a consensus of opinion in the High
Courts in India that a payment of money under such circumstances
as the payment in this oase of the arrears of the revenue created a

(1)140.809. (2) 8 A, 384. (3) 11 B. 313. (4) 10 A. 611.

(5) 10 A.W.N. (1890) 90. (6) 2 A. 193. (7) 8 C. 402.

123



13 All. 198 INDIAN DECISIONS, NEW SERIES [Yol.

1890 charge in equity in favour of the person paying the monev. In the case
JUVR H7. of Kinu Ram Das ' v. Mozaffer Hosain Shaha. (1) 198] a majority of
three Judges in a Court of five held that such a payment did not create
APPEL- a charge. The majority held thab where a mortgager! paid money under
LATE such circumstances the mortgagee might add it to the amount of his
CIVIL, mortgage and thereby extand his lien. We have no doubt that when
money is paid by a mortgagee to protect the mortgaged property from
13 A. 195= sa i e f or arrears of the Government revenue the mortgagee is entitled
10 A.W.N, t a dcl the amount so paid to the principal money due under his mort-
(1890) 228. gage, and that in such a case tbe mortgage cannot be redeemed without
paying those moneys ; and further, that if the mortgagee proceeds to
enforce his mortgage by sale of the mortgaged property, he can do so
for tbe amount then due, which would include the amount so paid for
arrears of revenue as well as any principal or interest outstanding. We
do not think that the cases relied on by Mr. Durga Gharan, even if
they are good in law, and we do not intend to question them, pub the
case any higher than this, that a person who made a payment to
save the property from sale on execution under circumstances which
would make s. 69 of the Indian Contract Act applicable, obtained
by such payment a charge in equity on such property. Although we
think that it is not necessary to decide in this case whether a mortgagee
making such payment would be entitled to bring a simple money suit
or the money paid, still we may point out that the case of Lacliman
Singh v. Salic/ Ram (2) and the case of Parsoiam Das v. Jaijit Singh (3)
are authorities to show that he might maintain such a suit. Those
authorities are fortified by the decision of their Lordships of the Privy
Council in Nuyenderc bunder Ghose v. Sreemutty Kamine Dossee (4). Ifc
is true that the latter case turned on the effect of s. 9 of Act I of 1845,
but that Act was repealed so far as tbe Lower Provinces of Bengal were
concerned by Act II of 1859, and so far as these provinces are concerned
by Act XIX of 1873. Still, the principle of the judgment in that case
applies, whether the section to be considered is s. 9 of Act I of 1845, or
s. 69 of tbe Contract Act. It is not necessary to go further into that
matter, because any rig'it which the plaintiffs [199] might have had
as a personal remedy against the defendant has been long since barred
by limitation. We do nob think it necessary to express any opinion
as to whether the majority of the Calcutta High Court in the case of
Kinu Ram Dasv. Mozaffer Hosain Shaha reported in (1) or the minority
which represents in that judgment the previous consensus of opinion
of the Indian Courts (excepting the case reported in I. L. B., 8 Calo.)
and which minority has been followed since in Bombay and Madras
was right. In our ooinion, whatever may be the position or right
of a person paying money under such circumstances, who is not a
mortgagee, the position of a mortgagee making such payments is this :
if he makes such payment and wishes to seek a direct remedy against the
mortgaged property in respect of them by a suit for sale of that mortgaged
property, ha must do so in his character and position as mortgagee,
for it was in that character and position, and that only, he paid the
money. He must, if he desires to bring the property to sale in respect of
such payments, add on those payments to the principal money due under
the mortgage. In other words, in our opinion, a mortgagee making such
payments as mortgagee, does not, by reason of making those payments,

(1) 14 G. 809. (2) 8 A. 384. (3) 11 B, 313. (4) 10 A. 611.

124



YII] NAUBAT SINGH V. INDAR SINGH 13 All. 200

obtain a lien independently of that under his mortgage. In this case 1890
the plaintiffs have lost their lien under the mortgage by having abandoned JUNE 27.
it, by having deposited the mortgage in Court to be handed over to the
defendant, by having taken out of the Court the money which the defendant APPED-
said was due on the mortgage, and by having quitted possession in favour LATE
of the mortgagor, tha defendant. Having abandoned their lien and rights CIVIL,
as mortgagees, it appears to us that the plaintiffs cannot revive them in
order Co sustain a suit for money which they 'could have added to the 13 A- 5=s
original mortgage-debt, and in respect of which they were entitled to J
continue in their character as mortgagees and to hold on to the deed of < 189 ) 228 -
mortgage. S. 83 of the Transfer of Property Act is a section that was
passed not only in the interest of mortgagors but in the interest of
mortgagees. It was a section by which it was intended that a mortgage
might be discharged by the mortgagor without any litigation, and it
contemplated a mortgagee taking out of Court in satisfaction of tha money
due to him the [200] money which had been paid in by the mortgagor,
although the mortgage-debt at the time might exceed the money paid in.
It provides that the mortgagee "on presenting a petition (verified in
manner prescribed by law for the verification of plaints) stating the amount
then due on the mortgage and his willingness to accept the moneys
deposited in full discharge of such amount and on depositing in the
same Court the mortgage-deed,". &3. It appears to us immaterial that
the plaintiffs here added a paragraph co their petition stating that ( they
reserved their rights in respect of the money paid for arrears of revenue.
The result is, we are of opinion that this suit cannot be maintained and
we dismiss the appeal with costs.

Appeal dismissed



13 A. 200 = 11 A.W.N. (1891) 5.

APPELLATE CIVIL.
Before Mr. Justice Mahmood and Mr. Justice Young.



NAUBAT SINGH: AND OTHERS (Defendants) v. INDAR SINGH AND
ANOTHER (Plaintiffs) .* [3rd July, 1890 ]

Limitation Suit by mortgagor tj recover money due on a registered mortgage-deed Act
XV of 1877 (Limitation Act , sch. ii, Nos. 113 and 116.

A suit by a mortgagor to recover money due on a registered mortgage -deed,
together with damages for noa-piyment, is not a suit to which the period of
limitation prescribed by the Limitation Act (Act XV of 1877), sob. ii, No. 113
(for specific performance of a contracD) is applicable. The period of limitation
applicable to such a suit is that prescribed by No. 116 of sob. ii, of the said Act
(for compensation for the broach of a contrast in writing registered) ; and the
time from which limitation will run against the mortgagor is, in the absence of
any specific provision to the contrary, r.hs date of the execution of the mortgage-
deed. Ga'.iri Sliinkar Sntju. (I) ; II csain All Khan v. Hafiz Ali Khan (2),
Nobocomor Mookhonadh-ivi v. Siru Muliick (3i ; Vythilinga Ptllai v. Thttzha-
namurti Piilai (4) ; and Gzxesh Krishn v. Matiliavrav Ravji (5) referred to.

[Diss., S O.C. 5 (8).]

THE facts of this case ara fully stated in the judgment of Mahmood, J.

' First Appeal, No. 161 of 1888, from a decree of Maulvi Zain-ul-Abdin, Subor-
dinate Judge of Moradabad, dated the 26th June 1888.

(1) 3 A, 276. (2) 3 A. 600. (3) 6 C. 94. (1) 3 M. 76. (5) 6 B. 75.

125



13 All. 201



INDIAN DECISIONS, NEW SERIES



[Yol.



1890 HOD. T. Gonlan and Munshi Sukh Nandan Lall for the appellants.

JULY 3. [201] Mr. Amiruddin for the respondent.

APPEL- JUDGMENT.

LATE MAHMOOD, J. The facts of this case are very simple, as also the

CIVIL, evidence upon which the determination of them depends.

The plaintiffs, Indar Singh and Basant Rai, executed an usufructuary
13 A. 200= mortgage-deed on the 3rd April 1882, in favour of Naubat Singh and
11 A.W.N. others, the defendants-appellants hefore us. Under the terms of that deed
(J891) S. the amount of the mortgage-money advanced was Us. 9,000, and in regard
to that sum the mortgage-deed mentioned that the money had already been
received from the mortgagees by the mortgagors. At the time when the
deed was presented to the Registrar for registration, Indar Singh and
Basant Rai, both of whom appeared before the Registrar, made a state-
ment to the effect that they had executed the deed, and that the deed
was to be given to them, as they would get the money on delivering the
document to the mortgagee. This statement was made to the Registrar
and is incorporated by him in the endorsement which he made on the
document.

It appears then that, in consequence of certain disputes which arose
between the parties, the present defendants, mortgagees, filed a suit
aga'nst the present plaintiffs for recovery of possession of the mortgaged
property upon the allegation that they had been wrongfully kept out of



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 20 of 155)