Charu Chandra Singha vs Charu Chandra Pal

Das, J.—This is an appeal by the Defendant against the judgment and decree passed by Jonab A. Rabbani, learned subordinate Judge, 4th Court, Alipore, district 24-Parganas and dated April 22, 1947.

This appeal arises out of a suit to enforce a mortgage entered into on April 8, 1932. The mortgage bond was executed by Srimati Santasila Dasi as natural guardian and mother of the Defendant Appellant Charu Chandra Sinha, then a minor.

The facts of this case may be shortly stated as follows:

On July 21, 1884, Joy Krishna Bose took a lotdari settlement of the disputed lands for a period of 40 years, viz., from April 1, 1884, to March 31, 1924. Joy Krishna''s sons sold the said lot No. 115 appertaining to touzi No. 2732 to Srimati Sashtimoni Dasi, wife of Ambika Pal. On June 1, 1902, Sashtimoni let out the lot to Rajendra Nath Sinha and Harinath Sinha on the terms and conditions mentioned in the lease Ex. 7; the annual rent was fixed at Rs. 1,513, viz., Rs. 938 as revenue, cesses, etc., payable into the Collectorate by way of barat and Rs. 575 as munafa. The lease which will be referred to as chakdari lease, was a mokarari mourashi junglebari chakdari one and contained a provision for payment of enhanced revenue and cesses in case of enhancement of revenue of the lot by the Government.

Sashtimoni having died, her lotdari interest devolved on her husband, Ambika Pal. On January 29, 1915 Ambika Pal executed a deed of trust, Ex. 4, for certain charitable purposes.

The lotdari settlement having expired, a fresh lotdari settlement was taken by Haripada Pal, a co-trustee, on behalf of the trust estate for 30 years, viz., from April 1, 1928, to March. 31, 1958, at a total assessment of Rs. 7,376-3-6p., viz., revenue Rs. 6,275 and cesses Rs. 1,101-3-6p.

The chaklars, viz., Rajendranath Sinha and others defaulted in payment of the revenue and cesses into the Collectorate as also in payment of munafa payable to the lotdars. Such default was due to the heavy assessment of revenue and cesses at the resettlement.

In consequence of such default, the revenue from the kist September, 1928, to kist January, 1932, fell into arrears. For realisation of such arrears of revenue, the lot was put up to sale and was purchased on June 27, 1932, by the Collector for Re. 1. The Collector took possession on September 9, 1932. Four of the trustees then retired and Haripada Pal alone continued to act as a trustee.

Meanwhile, the lessees (chakdars) approached the lessors (lotdars) for remission of rent, pleading inability to pay the enhanced revenue and cesses, etc. Thereupon by a registered deed dated April 4, 1932, the sole trustee Haripada Pal granted a kharij (sub-division) to the Defendant, then a minor represented by her natural guardian mother Srimati Santasila Dasi, in respect of the minor''s 1/5th share at a reduced rent.

The outstanding arrears were also settled at Rs. 6,161. To secure payment of the said money, Santasila Dasi as the natural guardian mother of the Defendant Appellant, then a minor executed on April 8, 1932, an instalment mortgage bond, Ex. 1, in favour of the said trustee Haripada Pal and hypothecated the mortgagor''s kharijed 1/5th chakdari interest.

Though the plaint is silent on the point, it appears that after the revenue sale, the Collector filed certificates, being 961 KM of 1934-1935 for realisation of the rent payable by the chakdars for kist March, 1932, to kist January, 1935 and in execution of the certificate purchased the entire chakdari interest on April 30, 1936, for an insignificant sum.

Some of the chakdars applied for setting aside the certificate sale, and on the application being dismissed, appealed to the Collector.

The other chakdars filed a suit being Title Suit No. 49 of 1937 for a declaration that the aforesaid certificate sale was void and for a further declaration that the possession of the Collector was on behalf of all the chakdars.

On January 27, 1938, the said suit was disposed of in terms of a joint petition of compromise and a decree, Ex. K, was passed accordingly. On June 21, 1939, the Sinhas including the Defendant-Appellant, executed a kabuliyat (Ex. E) in favour of the Government, for a lotdari settlement of the disputed lands for 14 years from April 1, 1939, to March 31, 1953, at an revenue of Rs. 4,264, with rights of renewal at fair rents.

In the meantime, the trustee Haripada Pal having died, his son and sole heir Madan Mohan Pal became the trustee. By a registered deed, dated May 28, 1987, Madan Mohan Pal, purporting to act u/s 73 of the Indian Trusts Act, 1882, appointed Rabindra Kumar Rakshit as a trustee. By an unregistered deed dated November 11, 1942, Rabindra Kumar Rakshit appointed the four Plaintiffs as trustees. As the Defendant failed to pay the dues under the instalment mortgage bond, the Plaintiffs instituted suit, out of which this appeal has arisen, for recovery of the dues under the mortgage bond, the claim being laid at Rs. 9,050 only.

The Plaintiffs prayed for sale of the mortgagor''s 1/5th share in the newly settled lot bearing a revenue of Rs. 4,284 and cess Rs. 400 in 16 annas share, i.e., the lot settled by the kabuliyat dated June 21, 1939.

The Defendant raised several defences but for the purposes of this appeal, it is necessary to state the following pleas which were ultimately urged in this Court by Mr. Chakravarti, learned advocate for the Defendant Appellant, viz., (1) that the Defendant''s chakdari interest which had been mortgaged, having been sold away and purchased by the Collector and the Defendant having acquired a new title, the Plaintiffs'' security cannot be enforced by a sale of the newly acquired right of the Defendant:

(2) that the Plaintiffs have no locus standi to maintain this suit;

(3) that the Plaintiffs'' claim except as regards the sums due for the kists Chaitra, 1345, and 1346 B.S. is barred by limitation;

(4) that the Defendant is entitled to pay any sum which may be decreed, in instalments under the provisions of the Bengal Money Lenders Act.

The learned subordinate Judge decreed the suit and passed a preliminary mortgage decree for the sum claimed.

The Defendant has preferred this appeal. Mr. Chakravarti, learned advocate appearing for the Appellant, has urged the pleas mentioned above.

I shall deal with the above pleas in the above order.

The first plea taken by the Defendant-Appellant raises a question of some nicety.

I have stated the facts which are relevant for a decision on this point.

In the plaint, the Plaintiff omitted to mention the sale of the chakdari interest of the Defendant and the purchase thereof by the Collector. The plaint merely mentioned the sale of the lotdari interest of the Plaintiff and the purchase thereof by the Collector. The plaint then stated that the effect of this sale was not to annul the chakdari right, and added that even after the sale, the Collector recognised the existence of the chakdari right. In para. (8) of the plaint, the Plaintiffs merely referred to an acquisition by the Defendant and his former co-sharers in the chak of the lotdari interest from April, 1938, and stated that the lotdari interest accreted to the chakdari interest and that, accordingly, the Plaintiffs had become entitled to realise their mortgage dues by proceeding against both the lotdari and the chakdari right of the Defendant mortgagor.

The plaint is silent as to how the Defendant and his former co-sharers acquired the lotdari interest.

The learned subordinate Judge was of the opinion that the effect of the compromise in Title Suit No. 49 of 1937 was that "the old tenancy of the Defendant continued which was not "affected by the sale", that by the kabuliyat dated June 21, 1939, the Defendant and his co-sharers took a fresh settlement of the land from the Government, that the Defendant and his co-sharers were now in possession of the land and that, as such, by the provisions of Section 71 of the Transfer of Property Act, the Plaintiffs were entitled to proceed against the said property for realisation of the mortgage dues.

Mr. Chakravarti has contended that the effect of the compromise in Title Suit No. 49 of 1937 was not to annul the certificate sale of the chakdari interest of the Defendant and his former co-sharers in the chak, and no question of accretion or accession of the newly settled lotdari interest in 1938 could arise u/s 71 of the Transfer of Property Act.

Mr. Roy Chowdhury, learned advocate for the Plaintiffs-Respondents, reiterated the reasons given by the learned subordinate Judge.

The first question which we have to consider is what was the effect of the compromise (Ex. K). The joint petition of compromise is to be found at Pt. II, p. 64.

The petition does not expressly state that the certificate sale held on April 30, 1335, in Certificate Case No. 961 KM of 1934-35 was set aside.

It was, however, argued that the necessary intendment of the petition was to annul the sale.

Such intendment has to be gathered from the terms of the petition of compromise read in the light of the surrounding circumstances.

The surrounding circumstances, as already set forth, were that the lotdari interest of the lotdars (Plaintiffs'' predecessors in interest) had been sold at a revenue sale and purchased by the Collector. The chakdari interest of the Defendant and his former co-sharers in the chak, had also been sold under the Public Demands Recovery Act and had also been purchased by the Collector, that the Collector was in possession and was realising rents from the subordinate tenants of the chakdars, that the Title Suit No. 49 of 1937 filed by some of the chakdars for a declaration of the invalidity of the sale of the chakdari right was pending, that an appeal before the Additional Collector, 24-Parganas, against the sale in Certificate Case No. 961 KM of 1934-35, filed by some of the co-sharer chakdars was also pending, and that various certificate cases for realisation of the unsatisfied arrears of revenue and cesses due to the Government and also for unrealised dues for rent payable by the chakdars to the Government, were pending.

Clauses (a) and (6) provided for the grant of a direct lotdari settlement to the chakdars for a period of 14 years from April, 1938, by the Government with rights of renewals at fair and equitable Government revenue.

Clauses (c), (d) and (e) provided for assessment of revenue by the Settlement department after giving the lotdar an allowance of 40 per cent, of the assets.

Clause (f) provided for the payment by the new settlement holders of Government demand of revenue and cess on the basis of the fresh settlement since 1932 (i.e., the year of sale of the lot ana of its purchase by the Collector) together with certain costs, such arrears of revenue and cesses were to be adjusted against the realisations made by the Government till delivery of possession of the lot by the Government to the new settlement holders, which, under Clause (g), was to be made over in April, 1938.

Clause (h) provided for the withdrawal by the Government of the certificate cases including Certificate Case No. 961 KM of 1934-35 in which the chakdari interest of the Defendant and his former co-sharers in the chak had been sold and purchased by the Collector for an insignificant sum as also of all certificates which were filed against the chakdars only. It further provided that the co-sharer chakdars who had filed an appeal against the certificate sale in Case No. 961 KM of 1934-35 shall withdraw the same.

Clause (j) provided for realisation of rents from subordinate tenants which remained unrealised at the time of delivery of possession to the settlement holders.

Clauses (i) and (k) are not material for our present purpose.

The above terms are inconsistent with the continued subsistence of the chakdari right. On the other hand, the terms proceeded on the footing that the lot was being preserved, the new settlement holders being given a concession as regards the revenue and cesses, etc., retrospectively from 1932, when the lot was purchased by the Government.

In my opinion, on a true construction of the petition of compromise, the conclusion follows that the sale of the chakdari interest was not set aside, the parties to the compromise acted on the footing that the chakdari interest had merged in the lotdari interest, both being vested in the Collector. The view taken by the Court below cannot be sustained.

I am not unmindful of the fact that there could be no merger in law, so far as the claim of the Plaintiffs to enforce their security by a sale of the chakdari interest of the Defendant was concerned, the certificate sale having the effect of a sale under the Code of Civil Procedure. The right of the mortgagees, i.e., the Plaintiffs, could not be affected by a compromise to which they were not parties.

As the certificate sale was not annulled, the basis on which the trial Court proceeded is taken away.

It was, however, argued that even though the certificate sale stood and the Defendant mortgagor lost his right in the property mortgaged, the security attached to the Defendant''s newly acquired interest as the lands which were the subject matter of the chakdari settlement with the Defendant as also of the lotdari settlement with the Defendant and his co-sharers, were the same.

Reliance was placed on Section 71 of the Transfer of Property Act. The section runs as follows:

When the mortgaged property is a lease, and the mortgagor obtains a renewal of the lease, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to the new lease.

As already pointed out, the lease, i.e., chakdari interest of the Defendant mortgagor, which was mortgaged to the Plaintiffs'' predecessor-in-interest, had terminated in 1936. It would be erroneous to hold that the lotdari settlement in 1938 in favour of the Defendant and other persons who were at one time co-sharers in the chakdari interest, was a renewal of the lease. The person granting the new settlement, the grantee under the settlement, the nature and terms of the settlement are all dissimilar. Section 71 is based on the principle enunciated as early as 1729 in the case of Rakestraw v. Brewer (1728) 2 P. WMS. 510 : 24 E.R. 839 to the effect that the new lease is treated as engrafted on the stock of the old lease and forming part of the mortgaged security. Here the stock so far as the mortgagor was concerned was destroyed long ago and no question of engrafting on the old stock could possibly arise. I may add that Section 71 is not based on the doctrine of quasi-trustee as was hinted at the bar.

I may quote here the following passage from the well-known treatise on Law of Mortgage by Dr. Rash Behari Ghose (Tagore Law Lectures, 1875-76), 4th Ed., 1911 (which is the last edition by the author):

It is sometimes said that the position of the mortgagor in possession is that of a trustee, as he is not the absolute owner of the land, but holds it subject to the rights of the mortgagee. This proposition must, however, be received with considerable reserve. It is true that the indefinite power of dealing with a property, which we call ownership, is in some respects controlled by the creation of a mortgage but it is certainly not an accurate use of language to say that the mortgagor becomes a trustee for the mortgagee (p. 199).

I shall now refer to certain cases which were cited before us.

Reference was made to the following dictum of Stanley C.J. in the case of Sham Das v. Batul Bibi (1902) ILR 24 All. 538, 540:

A mortgagee is entitled for the purposes of his security to all such interests as may be acquired either as accretions to or in place of the original interest which was conveyed to him.

The learned Chief Justice exemplified above dictum by saying that-

in case of mortgage or charge upon leaseholds, if a new lease is obtained by a mortgagor, either on a forfeiture of the original lease or by other means, th" owner of the mortgage or charge will have the benefit of the new lease for the purpose of his security.

The illustration is founded on the view that the new lease is traceable to the old roots.

For reasons I have already given, the dictum, does not govern the present case.

The case of Lootnarain Singh v. Showkee Lall (1878) 2 C.L.R. 382 is also distinguishable.

In that case, the Defendant mortgagor who had a ghatwali tenure mortgaged the same in zurpeshgi right to Dewan Rutur Lal in the year 1266 B.S. The zemindar Raja Leelanand Singh obtained a decree for resumption of the ghatwali and in execution of the decree took possession in 1868. In 1874 the defunct ghatwali mahal was settled with the mortgagor in mokarari mourashi right and the Defendant mortgagor went into possession. The Plaintiff Showkee Lall, on the strength of a conveyance of a moiety share of the mortgagee''s rights, sued the Defendant mortgagor for possession of the moiety share. The suit was decreed by the learned subordinate Judge. The Defendant mortgagor appealed to this Court. The appeal was ultimately disposed of on certain terms as to payment of the Plaintiff''s dues under the zurpeshgi.

Repelling the contention of the Defendant mortgagor that the mortgagee could only sue for the mortgage money, because the original ghatwali has come to an end, their Lordships (Jackson and Tottenham JJ.) observed that-

the case clearly falls within the equitable principles affirmed by Section 18 of Act I of 1877. The Specific Relief Act. The lessors when they granted the lease in 1260 had an infirm title. They have since got into possession of the estate by a valid title, and they are bound, I think, to carry out the contract to which the Plaintiff has in part succeeded, because they are now in a position to do so.

In the case cited, the new title was said to have grown out of the old root.

Nor does the principle of substituted security embodied in Section 73 of the Transfer of Property Act assist the Plaintiffs Respondents in the case.

The case of Jotindra Mohan Pal v. Godadhur Madak (1897) 2 C.W.N. 29, illustrates the limits to which principle of substituted security as laid down in (1874) L.R. 1 I.A. 106 (Privy Council) can be pushed. In Jotindra''s case the mortgagor mortgaged his dartalvki right in 1877. The mortgagee Plaintiffs purchased the same in execution of a mortgage decree in 1882. It appeared then that the mortgagors had, after the mortgage, entered into ah agreement with the landlord whereby the dartaluki right was converted into a patni. In 1878 the landlord brought a suit for arrears of rent of the patni and in execution of the decree, obtained in the suit, had the patni sold for its own arrears and at the sale the patni was purchased by the Defendants. It was held that the Plaintiffs could not recover possession of the patni from the Defendants.

Banerji J. observed as follows:

The creation of a mortgage gives certain rights to the mortgagee over the mortgaged property; but it does not necessarily prevent third parties from dealing with the mortgagor still as the owner of the property, nor is the mortgagee entitled in every case to ignore the rights arising out of such dealings in favour of third parties (at p. 31).

The principle of substituted security cannot avail the Plaintiffs. So far as they are concerned, they were at liberty to sue the Collector for enforcing the security; but, as stated later on, they have denied that right to themselves by not impleading the Collector and by not proceeding against the property mortgaged.

The Bench decision in the case of Kodi Sankara Bhatta v. Moidin (1918) 35 Mad. L.J. 120, supports the Defendant Appellant. In this case a warg land and a kumaki land attached to it were mortgaged with possession in 1890 by the Plaintiff''s predecessor-in-interest to the Defendant''s predecessor-in-interest till 1914. In 1911 Government declared the kumaki land to be waste paramboke and granted the same to the Plaintiff. In a suit by the Plaintiff In 1911 it was held that the Government was entitled to ignore the mortgage and to grant the same to whomsoever it pleased and the Plaintiff obtained a title to the land as owner against the Defendant.

Sadasiva Aiyar J. observed:

Having regard to the illustration to Section 70 of the Transfer of Property Act, I am unable to hold that the kumaki land at the absolute disposal of the Government and granted by them to the owner of the equity of redemption of the neighbouring warg, can be treated as an accession to the said warg land (p. 124).

In the present case, the Collector first acquired the lot at a revenue sale which took place because of non-payment of revenue the then lotdars, i.e., the predecessor-in-interest of the Plaintiffs. The title acquired by the Collector at the revenue sale was a paramount title. The Collector later acquired the chakdari interest of the Defendant and his former co-sharers. The fresh settlement of the lot to the Defendant mortgagor and the latter''s former co-sharers who were not mortgagors, by the Collector cannot, on the principles enunciated by Sadasiva Aiyar J., be regarded as an accession to the mortgaged premises. In the present case the mortgage property had been destroyed so far as the mortgagor was concerned and it had acquired an entirely new form.

It is true that in England the principle of accession to the mortgage security has been liberally applied since early times. Thus in 1781, the principle was applied to a case where a mortgagor being Lord of a manor purchased certain copyhold interests under the manor, the copyhold interests were held to enure for the benefit of the mortgagee, Doe v. Pott (1781) 2 Doug. 710: 99 E.R.452. The above principle was applied by the Judicial Committee in the case of (1879) L.R. 6 I.A. 145 (Privy Council) which was a case of acquisition by the mortgagor of certain birt tenures. The case was decided before the enactment of the Transfer of Property Act. It was pointed out that generally speaking the English Law as regards the matter is founded on justice and may be applied to an Indian mortgage. The above principle has also been applied in this country after the passing of the Transfer of Property Act, in spite of the restricted language of Section 70. Thus in Behary Lal Sen v. Indra Narayan Bandopadhya (1927) 31 C.W.N. 985 Rankin C.J. opined that an enlargement of the share of the mortgagor by inheritance since the mortgage and before the decree, must be regarled as an accession to the security.

The above discussion undoubtedly shows an extreme solicitude on the part of the Court to preserve the security and even to enlarge the same. But the doctrine must be limited to cases where the security is existent and has not been destroyed altogether and the mortgagor thereafter acquires a new right traceable to the former right, i.e., to cases where the security merely assumes a new form. The principle, in my opinion, cannot be applied to the present case where the mortgagor lost his interest as a result of a sale for non-payment of rent to the landlord, i.e., the Government, and the fresh settlement was a result of the compromise arrived at between the Government, the mortgagor and his former co-sharers in the chak, who were not bound to pay the mortgage dues. In such a case, the new settlement cannot be held to be either an accession or a substituted security.

I may further point out that in the facts of the present case, it was not suggested that the tenant mortgagor allowed his landlord to obtain a collusive decree or certificate for rent and to purchase the same with a view to resettlement. If such were the case the security would have attached to the property, as held in Ram Saran Das v. Ram Per gash Das (1905) ILR 32 Cal. 283.

Reference was also made to Section 43 of the Transfer of Property Act. The section proceeds on the principle that the subsequently acquired title feeds the estoppels arising out of the mortgagor''s covenant for title. In the present case there was no erroneous representation by the mortgagor in the mortgage deed as regards the title conveyed to the mortgagee as security. The section does not oblige the mortgagor to secure to the mortgagee a thing different from what was mortgaged.

Reliance was also placed on Section 88 of the Indian Trusts Act, 1882. The section applies to persons bound in a fiduciary character. It is doubtful whether a mortgagor can be regarded as a person who is bound in a fiduciary character to protect the interest of the mortgagee. Even assuming that a mortgagor is such a person, it cannot be said that in the present case, the mortgagor availed himself of his position as mortgagor when the fresh settlement of the lot was granted by the Government. Nor can it be said in the present case, that the mortgagor entered into any dealings under circumstances where his interests were adverse to his duty. As already pointed out, the Defendant mortgagor''s interest in the mortgaged property had come to an end long before the fresh settlement and that such fresh settlement could not have been possible if the Government had not purchased the lot itself for default in payment of revenue made by the lotdar who was the predecessor in title of the Plaintiff mortgagee.

Section 90 of the Indian Trusts Act, 1882, does not also apply. In the first place the mortgagor is not one of the persons mentioned in the section. Again, it cannot be said that the Defendant mortgagor obtained the fresh settlement as representing all persons interested in the property, Kodi Sankara Bhatta v. Moidin (supra).

Nor does Section 94 of the Indian Trusts Act, 1882, avail the Plaintiff mortgagees. In the present case, the Defendant mortgagor had neither any possession in nor any title to the mortgaged property. The title and possession was in the Government.

The first contention urged on behalf of the Defendant-Appellant must, accordingly, succeed. The Plaintiffs-Respondents cannot, therefore, proceed to enforce the mortgage against the property described in the schedule to the plaint.

The next contention urged was as regards the locus standi of the Plaintiffs. I am clearly of opinion that there is no substance in this contention. There is no dispute that Haripada Pal was the sole trustee. In fact, the Defendant mortgagor executed the mortgage in favour of Haripada alone. On Haripada''s death, his son Madan Mohan as the sole heir of the last surviving and continuing trustee Haripada, appointed Rabindra Kumar Rakshit as the trustee. This appointment is valid u/s 73 of the Indian Trusts Act. Rabindra in his turn nominated the four Plaintiffs as the succeeding trustees.

Three objections have been taken to the validity of the last nomination. It was first contended that the deed was an unregistered one. The deed in so far as it nominated the trustees did not require registration. The ultimate effect of the nomination may be to vest in the trustees so nominated rights in immovable property exceeding Rs. 100 in value; but the deed does not itself purport to vest such right in the nominees and as such the deed is not compulsorily registrable.

It was next contended that the deed of nomination did not expressly mention the disputed mortgage. The deed of nomination must, however, be read as a whole. So read, the intention is clear that the nomination was in respect of the entire trust estate including the disputed mortgage.

It was lastly contended that the trust deed (Ex. 2) did not authorise a nomination of more than one trustee by an existing trustee. We have looked into the original Bengali deed and it seems to us that there was no bar to any trustee nominating more than one succeeding trustee provided that the total number of the existing trustee and the nominated trustees did not exceed five. If the contention of the Appellant, viz., that each trustee can nominate only one trustee in his place, be correct, the original trustees being five in number, the provision that the number of trustees shall not exceed more than five, would be unnecessary. Moreover, once a trustee omits or refuses to nominate a successor, the total number of trustees would be permanently reduced to less than five. In the present case as Rabindra was the sole trustee, the trust estate would, on the Appellants'' contention, have to be represented by only one trustee for all time to come. This result would run counter to the expressed intention of the settlor that the trust estate should be managed by five persons.

It was next urged that a personal decree for any instalment other than those due in Chaitra, 1345, and Chaitra, 1346 B.S., is barred by limitation.

We have held that the Plaintiffs'' right to enforce the mortgage security against the property described in the schedule to the plaint is no longer available to them. The Plaintiffs might have proceeded against the Government as the purchasers of the equity of redemption but that right cannot be enforced as the Collector was not made a party, although an express plea in that behalf was taken in the written statement and the relief claimed by the Plaintiffs was also not against the original security. The right of enforcing the original security is thus no longer available to the Plaintiffs. On the principles enunciated in the case of Sailen Chand Dutt v. Promode Kumar Roy (1948) 53 C.W.N. 631, the Plaintiffs can, however, get a decree under Order XXXIV, Rule 6 of the Code of Civil Procedure. On a perusal of the mortgage bond (Ex. 1), it is apparent that the Plaintiffs'' right to enforce their claim to the sums due only in respect of the instalment due in Chaitra, 1345 B.S. and 1346 B.S., is still alive. The Plaintiffs are accordingly entitled to claim the aforesaid sums together with interest as stipulated, viz., 6 per cent per annum. On calculation by the learned advocate for both parties the sum was found to be Rs. 2, 511 annas 8 only. A money decree for this sum must be passed in favour of the Plaintiffs-Respondents.

It remains for me to consider the fourth and last point raised on behalf of the Defendant-Appellant. It was contended that the Defendant mortgagor was entitled to relief under the Bengal Money-Lenders Act, 1940, in the shape of payment of the sum which might be decreed in instalments.

It was not disputed that the loan is not a commercial loan. u/s 34(1)(i) of the Act, the Defendant mortgagor is thus entitled to pay the sum in annual instalments subject to such conditions as the Court may impose.

The mortgage bond was executed on April 8, 1932. Nothing has since been paid towards the loan and a good part of the loan has become unenforceable. The trust state which the Plaintiffs represent is in a bad way. Having regard to all the facts of this case, I am clearly of opinion that the sum decreed, viz., Rs. 2,511 annas 8 only be paid in two instalments. The first instalment of Rs. 1,250 must be paid on or before the last day of Chaitra, 1359 B.S., and the second instalment of Rs. 1,261 annas 8 only on or before the last day of Chaitra, 1360 B.S

Learned advocates on both sides agree that in default of payment of the first instalment, the entire sum will fall due. The present suit is one to which Section 34 of the Bengal Money-Lenders Act applies and no direction can ordinarily be given that in default of payment of an instalment, the entire sum will be due. In the case of Gour Chand Mallik v. Pradyumna Kumar Mallik ILR [1943] 2 Cal. 485 it was held that such a direction on the basis of an agreement between the mortgagor and the mortgagee was not a nullity and can be validly incorporated in a decree passed in a mortgage suit. Moreover, we are simply passing a money decree. The agreement can, therefore, be embodied in this decree and we direct accordingly. I am further of the opinion that conditions should be imposed on the Defendant mortgagor. The Plaintiffs have now lost their right to enforce the mortgage. I, accordingly, direct the following property, viz., an undivided 1/5th share owned and possessed by the Defendant Appellant in touji No. 2722 of the 24-Parganas Collectorate being Sunderbans Lot No. 115A, first portion, Mouzah Dakhin Joy Krishnapur, in the district of 24-Parganas comprising an area of 5,000 bighas of land, more or less, being a tenure held under a Crown Estate under a Government lease, dated June 21, 1939, for which the annual revenue at present payable to the Collector is Rs. 4,264 do remain charged for the said sum of Rs. 2,511 annas 8 only. I further direct that in default of payment of the said sum as aforesaid the unpaid amount shall be realised by a sale of the said charged property in execution of this decree, and in case they said sunt is not realised in full or in part thereby, the Plaintiffs will be entitled to realise the sum remaining due personally against the Defendant Appellant.

In view of the divided success of the parties, I direct that the parties do bear their respective costs in this Court and in the Court below.

The appeal is, accordingly, allowed in part and the judgment and decree of the Court below are varied and the suit is decreed in part as stated above.

P.N. Mookeejee, J. I agree in the order proposed by my Lord. By the compromise (Ex. K) the certificate sale was not set aside but the parties thereto proceeded on the footing of merger of the chakdari and the lotdari interests. Vis-a-vis the mortgagee, however, there could be no such merger. When, therefore, the Sinhas got the lotdari settlement in 1938-39 under the compromise (Ex. K) the true position in law, so far as the mortgagee was concerned, was that the mortgaged property or the mortgage security had not been destroyed but was still available to him although it had passed away from the Sinha mortgagor. In such circumstances, apart from anything else, there could be no question of any accretion or accession to the mortgaged property or substituted security by reason of the acquisition of the lotdari interest by the Sinhas; nor could there arise any question of trust in that connection, there being no foundation for any allegation of fraud in relation to the compromise (Ex. K). The Respondent''s argument to the contrary must, therefore, fail.

In the above view of the matter, it is not necessary for me to express my views on the cases, discussed by my Lord or on the other lines of reasoning, given by him in his judgment, and I reserve them, particularly the cases reported in Sham Das v. Batul Bibi (supra), Lootnarain v. Showkee Loll (supra) Jatindra Mohan v. Gadadhar (supra) and Kodi, Sankara v. Moidin (supra), for further consideration on appropriate future occasions.

The net position is that the certificate sale was not set aside and the mortgaged property thus remained in the hands of the Collector who was not impleaded in the present suit. There is also, as already stated above, no question of any accretion or accession or trust or substituted security. No mortgage decree can, therefore, be passed in this suit, but as my Lord has pointed out, the mortgage security being now unavailable to the mortgagee-its enforcement being now barred by the law of limitation-the mortgagee may be granted, in the circumstances of this case, a personal decree, so far as the claim to such a decree was alive at the date of the present suit. I agree, therefore, that this appeal should be allowed in part in the manner indicated in the judgment of my Lord.