JUDGMENT
1. This is an appeal from a suit brought for redemption by the plaintiffs-respondents.
2. The appellants here are the defendants mortgagees.
3. In addition to the appeal we have also before us cross-objections put forward against the decree of the Court below by the plaintiffs-respondents.
4. It is not necessary to set out the facts of the case in any great detail. The dispute between the parties here is with regard to certain items of the mortgage account. The defendants-mortgagees complain that certain items ought to have been allowed to them by the Court below. In turn, the plaintiffs mortgagors complain that the lower Court has not given them credit for certain items to which they were entitled.
4. To deal first with the appeal of the defendants-appellants, the mortgagees.
5. One claim which was made in the suit for redemption was that these mortgagees had, during the continuance of the mortgage, out a large number of trees the value of which was assessed at Rs 3,000.
6. The plaintiffs, therefore, asked the Court to allow this sum of Rs, 3,000 by deduction from the mortgage-money payable in order to get redemption.
7. The learned Judge of the Court below came to the conclusion that the plaintiffs were entitled to a deduction of Rs. 2,950. He found with respect to one tree that there was no evidence regarding its value, the value having been assessed by the plaintiffs at Rs. 50, He, therefore disallowed this item.
8. The defence set up was that the mortgagees never out down the trees as alleged by the plaintiffs. There was a direct conflict of evidence and the learned Judge, as we have already said, has found in favour of the plaintiffs.
9. Four witnesses were examined on behalf of the plaintiffs in order to prove that these trees had been cut and that a sum of close on Rs. 3,000 had been obtained by selling them. Much criticism has been bestowed on the testimony of these witnesses and it may at once be acknowledged that their evidence is not perhaps of the highest class. On the other band, as opposed to it, we have nothing but the bare denial of one of the mortgagees who appeared as a witness whose testimony was supported by the evidence of a partisan witness whose statement may be disregarded altogether.
10. During the course of the trial, the Subordinate Judge made an inspection of the spot and recorded a note of what he had observed at the time of his visit. Belying principally upon the result of his observation, the learned Subordinate Judge came to the conclusion that the story for the plaintiffs was probably true and that the trees had been out as alleged.
11. We have felt the force of the observations which have been addressed to us on behalf of the defendants-appellants regarding the plaintiffs evidence in this respect. On the other hand, is the consideration that the learned Judge of the Court below had the witnesses before him and ho seems to have been satisfied on the whole that they were telling the truth. He has given reasons for awarding credit to the story told by the plaintiffs and he certainly had some solid ground to go on in the fact that he himself ha3 been to the spot and had observed certain indications that trees had been out. It is perfectly true that the Subordinate Judge could not as the result of his examination of the locality determine how many trees had been cut or by whom. At the same time, he is perfectly justified in holding that what he saw at the time of his visit entitles him to award preference to the story which has been told on behalf of the plaintiffs and to reject the story which was put forward on behalf of the mortgagees, namely, that no trees had been out at all.
12. On this part of the case, therefore, we must decline to interfere with the finding of the Court below. We certainly are not in a position to say that the finding of the learned Subordinate Judge on this part of the case is wrong.
13. The next point which had been raised on behalf of the mortgagee-appellants is that the Court below wrongly refused to allow them certain sums which were claimed to be owing as arrears of rent.
14. Under the terms of the mortgage the mortgagor was to be liable at the time of redemption to pay to the mortgagee all sums which were due in respect of arrears from the tenants.
15. As we understand this term of the mort gage, the intention of the parties was, that the mortgagor should pay up the arrears to the mortgagee when the latter vacated possession and that he in turn was to acquire the right of realizing the arrears from the tenants after he himself had been put into possession after redemption.
16. The present claim that has been made by the mortgagee-appellants for the arrears is based upon a series of decrees all pi which are now time-barred. It is quite obvious, therefore, that if this sum now claimed by the mortgagees were allowed and if the decrees were transferred to the mortgagor after redemption, the decrees would be of no use whatever to the mortgagor. They cannot now be executed by reason of lapse of time. It seems to us, therefore, that on a proper construction of the mortgage-deed and the true intention of the parties this claim for arrears should not be allowed. As far any claim for further arrears over and above those mentioned in the decrees to which we have referred all we need say is that there is no proof of it. Further, we find no provision in the mortgage-deed for the payment of interest on the arrears of rent and the claim for interest, therefore, which is also put forward; must be rejected.
17. This disposes of the case of the defendants-appellants.
18. The cross-objections raise really two points. In the first place, it is said that the lower Court ought to have awarded damages to the plaintiffs by reason of losses which they have incurred in the following way: It is said that these mortgagees during their period of possession, by their failure to eject non-occupancy tenants, allowed these tenants to acquire occupancy rights. In some eases it is alleged that occupancy rights were actually granted to non-occupancy tenants in return for nazrana (a premium.).
19. The finding of the Subordinate Judge is that it is proved that a sum of Rs. 580 was realised by the mortgagees in return for the grant of occupancy rights.
20. The Subordinate Judge, however, refused to allow this sum to the plaintiffs. He gives a variety of reasons for his decision none of which appeals to us. He says, for example, that it can make no difference to the mortgagor whether the land which he has to get back after redemption is burdened with occupancy rights. That is obviously an erroneous conclusion.
21. It seems to us to be quite clear that the land, after occupancy rights have accrued, cannot be so valuable to the landlord as it was before those rights came into existence. And if it is the duty of a mortgagee to take such care of the property as a prudent man would, he certainly is not entitled to hand the property back to the mortgagor in a worse condition than he received it.
22. We find, therefore, that occupancy rights have accrued on this land, and those rights, we take it, cannot now be extinguished. We can see no reason, therefore, for denying the plaintiffs this sum of Rs. 580 and we cannot see that the mortgagee has any right whatever to retain this money. Allowance, therefore, must be made for this sum in calculating the amount which is to be paid for redemption. The fact is, that by conferring occupancy rights in return for payment of a premium the mortgagee has been conveying away certain rights of the owner of the property and he is not entitled to retain the money which he has got for granting those rights and at the same time to return the land burdened with those rights to the owner, the mortgagor.
23. We hold, therefore, that the sum of Rs. 580 ought to be allowed to the mortgagors by reduction of the sum found payable by the Court below.
24. The other claim which has been put forward on behalf of the mortgagors is, we may say at once, quite untenable.
25. When the mortgage was made by Musammat Shiam Kunwar in the year 1905 it was arranged between her and the mortgagee that she was to remain in possession of an area of cultivated land measuring 67 bighas. A portion of this was to be held on payment of rent amounting to Rs. 90 a year and the remainder was to be held rent-free, and it was expressly stipulated between the parties that, while the mortgage continued, the lady was to be allowed to retain possession of all this land, the only right of the mortgagee being that of receiving annually the sum of Rs. 90 from Musammat Shaim kunwar.
26. The plaintiffs ask us to hold that, when Shiam Kunwar sold the equity of redemption to them in the year 1914, they acquired the right to take over possession of this land, that is to say, the tenancy right which Musammat Shiam Kunwar had obtained by agreement with the mortgagee when the mortgage was made in the year 1905.
27. One obstacle to the entertainment of this argument is the fact that the deed of transfer by which the equity of redemption was sold to the plaintiffs does not in terms confer upon them any right to occupy the land which remained in Shiam Kunwar's possession under the terms of the mortgage. It would, therefore, be a sufficient answer to the case of the plaintiffs to say that they have shown no right to set up any claim in respect of compensation, or damages relating to the occupation by Musammat Shiam Kunwar of these 67 bighas.
28. It was argued further that, being entitled to possession o£ this land, the plaintiffs were justified in calling upon the mortgagees to eject Musammat Shiam Kunwar and they, therefore, asked for damages because the mortgagees refused to eject the lady.
29. But it is quite clear from the terms of the mortgage that the mortgagees could have had no right whatever to eject Musammat Shiam Kunwar as long as the mortgage subsisted. There is, as we have said, an express provision relating to this matter in the mortgage and it is futile to contend that, in any case, the plaintiffs, after their purchase of the right to redeem, bad a right to call upon the mortgagees to eject Musammat Shiam Kunwar. This part of the case put forward on behalf of the plaintiffs-respondents must, therefore, fail.
30. The result of this is that we find no force in the appeal of the defendants-appellants and direct that it be dismissed with costs including, in this Court, fees on the higher scale.
31. As regards the cross-objections we think the plaintiffs-respondents are entitled to succeed to the extent of the sum of Rs. 580 which will be deducted from the amount declared to be payable by them for the purpose of obtaining redemption. In the cross-objections, therefore, we allow the parties costs in proportion to success and failure including, in this Court, fees on the higher scale.