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PATNA HIGH COURT
Rai and Kanhaiya Singh JJ.
Sailendra Narayan Bhanj Deo
Versus
Jagat Kishore Prasad Narayan Singh
First Appeal No. 429 of ; 1951 of ;
Miscellaneous Appeal No. 226 of 1950 ;
Decided On : DECEMBER 04, 1956
MORTGAGE - STATUTORY MORTGAGE - ACCOUNTABILITY OF MORTGAGEE - SECTION 171 OF THE BIHAR TENANCY ACT - SECTION 76 OF THE TRANSFER OF PROPERTY ACT - LAND REFORMS ACT - JURISDICTION OF CIVIL COURT.
Fact of the Case:
The plaintiff, as the executor and the principal legatee under the last will and testament of Chandreshwar Prasad Narayan Singh, became the mortgagor, and he was also the Receiver appointed by Court. In his dual capacity as Receiver and mortgagor he instituted the present suit on 20th September, 1949, for redemption of the mortgages, and possession of the mortgaged properties after rendition of account by the defendant.
Finding of the Court:
The Court held that the suit was maintainable and that the defendant was accountable to the plaintiff and decreed the suit with costs.
Issues: 1. Whether the plaintiff was competent to maintain the suit and continue the proceedings? 2. Whether the defendant was liable to render accounts of the usufruct of the properties in his possession by virtue of the provisions of Sec.171 of the Bihar Tenancy Act?
Ratio Decidendi: 1. The Court held that the plaintiff was competent to maintain the suit and continue the proceedings, as the loss of his character as legatee in consequence of the reversal of the order granting probate between the conclusion of the hearing and the pronouncing of the judgment had not the effect of arresting the prosecution of the suit and did not nullify the decree as a whole. 2. The Court held that the defendant, as the statutory mortgagee under Sec.171 of the Bihar Tenancy Act, is accountable to the mortgagor and that he is not entitled in law to remain in possession until the entire amount of rent deposited by the mortgagee is paid off by the mortgagor independent of the appropriation by him of the usufruct of the land in his possession.
Final Decision: The Court dismissed the appeal with costs.
Kanhaiya Singh, J.
1. These appeals, First Appeal No. 429 of 1951 and Miscellaneous Appeal No. 226 of 1950, were heard together as they arise out of the same transaction and involve common facts, and this judgment will govern both. It will be more convenient to deal with them separately.
2. F. A. 429/51. -- The First Appeal has been brought from the judgment of the Additional Subordinate Judge, dated 22nd August, 1951, by which he decreed the plaintiffs suit for accounts. The facts may be shortly put as follows. The dispute relates to the estate of late Chandreshwar Prasad Narayan Singh, the proprietor of Maksudpur Raj. On 17-2-1924 he executed in favour of Raja Bahadur Sir Rajendra Narayan Bhanj Deo of Kanika, whose son Raja Sailendra Narayan Bhanj Deo is the defendant in the suit (hereinafter referred to as the Raja of Kanika), a simple mortgage hypothecating the properties mentioned in Schedule A to the plaint to secure repayment of Rs. 4,00,000.
On 1-6-1935 the Raja of Kanika instituted Mortgage Suit No. 27 of 1935 in the Court of the 3rd Subordinate Judge, Patna, to enforce the said mortgage and on 22nd April, 1936, obtained a preliminary decree for Rs 6,00,000 which decree was made final on 16-3-1937. In 1938 he levied execution of the decree in Execution Case No. 13 of 1938, and the Court ordered execution by appointing a Receiver as provided in Sec. 51 of the Civil Procedure Code. The Receiver appointed by the Court was no other than the judgment-debtor himself, namely, Chandreshwar Prasad Narayan Singh. This appointment was made on 20-12-1938, and he worked as a Receiver till 4-5-1940 when he was succeeded by Mr. Ramanugrah Prasad, Advocate, as a Receiver.
3. The mortgaged property constituted the mokarrari tenure of the mortgagor who had undertaken under the mortgage the liability to pay to the superior landlord the rent of the tenure which came to Rs. 21,330-3-6 including cess. The proprietor of this tenure was Rani Bhuneshwari Kuer, the Rani of Amawan and the owner of seven annas Tikari Raj. She had mortgaged her proprietary interest usufructuarily to the Maharaja of Darbhanga. When the rent of the tenure in question fell into arrears the Maharaja of Darbhanga as a mortgagee-proprietor started certificate proceedings for realisation of the arrears and obtained in 1940 a certificate for the arrear rents of the tenure amounting to Rs. 83,267. In execution of the certificate the Darbhanga Raj brought the tenure to sale and in order to protect his interest as a mortgagee of the tenure the Raja of Kanika deposited the entire certificate dues in Court on 28th September, 1940, in accordance with the provisions of Sec.171 of the Bihar Tenancy Act and obtained delivery of possession on 23-11-1940 in respect of the villages mortgaged to him as described in Schedule A to the plaint and the other villages which were out- side the mortgage as mentioned In Schedule B to the plaint.
4. It will appear from the above that the position towards the end of 1940 was that the Raja of Kanika in execution of whose mortgage decree Mr. Ramanugrah Prasad, Advocate, had been appointed Receiver, obtained possession of the mortgaged property as well as other villages and was in possession of those villages as a mortgagee by virtue of the provisions of Sec.171 of the Bihar Tenancy Act. On 23rd September, 1941, Chandreshwar-Prasad Narayan Singh, it is alleged, executed a will in respect of his entire estate in favour of Kumar Jagat Kishore Narayan Singh, the plaintiff, who is his daughters son.
About 5 days after the execution of the will he died on 28-9-1941 leaving him surviving four daughters, namely, Janak Kishori Devi, Girja Kishori Devi, Raj Kishori Devi and Krishna Kishori Devi (mother of the plaintiff). On 10-12-1945 the plaintiff obtained from the High Court a probate of the will.
5. Mr. Ramanugrah Prasad, Advocate, who was the Receiver in the execution of the mortgage decree continued to be so till February 1949, and by the orde
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