The judgment established the interpretation of the provisions of Section 58(e), T.P. Act regarding English mortgages and the extent of the mortgagor's interest transferred to the mortgagees.

JUDGMENT

Guha, J. - These two appeals have arisen out of a suit in which the plaintiff-respondent in this Court claimed Rs. 27,867-14-0 as the minimum royalty, cesses and price of coal, from the defendants' the suit, basing the claim on a kabuliat executed on 3rd June 1908(Ex. 11 in the case), evidencing a lease for 999 years of underground right in Chak Sitalpur in Lot Gopinathpur. The history of title of the plaintiff as lessor on which the claim in suit was founded, was given in detail in the plaint, and has been set out in the judgment of the trial Court against which these appeals are directed. It is not necessary for the purpose of these appeals to consider the materials relating to the accrual of the plaintiff's title as lessor, as indicated in the different documents filed in Court, entitling him to claim the amount sought to be realised by him in the suit. In the written statement filed by the contesting defendants the statements made by the plaintiff as to the devolution of interest and accrual of his title were not specially denied or controverted; and no issue was raised on the question of the plaintiff's title as lessor. The plaintiff's claim was resisted by the mortgagees of the interest created by the lease and the transferees from the mortgagees in respect of the underground rights in chak Shitalpur, defendants 2, 5, 6 and 7.

2. The defence of defendant 2 in the suit does not require consideration in view of the position that in these appeals it was conceded on behalf of the plaintiff-respondent, that defendant 2 was not liable either jointly or individually for any part of the claim in suit. Defendants 2, 5 and 6 denied liability and denied the plaintiff's statement in the plaint that they were in possession. On the pleading of the parties concerned, the material issue raised for determination in the suit was issue 7:

Whether defendants 2, 5, 6 and 7 are necessary parties to the suit? Whether they are in possession of the mortgaged property? Are they or any of them liable for the dues or any part of the dues of the plaintiff.

3. The Additional Subordinate Judge of Asansol, by whom the suit was tried, passed a decree on the basis of minimum royalty as given in Schedule 2 of the plaint, holding defendants 2, 5, 6 and 7 liable jointly and severally to the plaintiff. As the Judge in the trial Court has observed in his judgment, the point that was "very much debated" before him was this:

Whether the mortgagees and their transferees, the contesting defendants in the suit were liable for the plaintiff's claim for minimum royalty, etc.

4. The debate centered round the question whether the two mortgages executed on 18th May 1923(Exs. 2 and 5), were English mortgages or not. The decision of the trial Court on the question whether the mortgages were English mortgages or not, was in favour of the plaintiff; the Subordinate Judge held that on the footing that they were English mortgages, the mortgagees or their transferees were liable to the plaintiff in the suit. On the question of possession, the finding of the Court below was also in favour of the plaintiff; it has held that there was evidence on the record indicating possession of the mortgagees or their transferees. This finding on evidence on the question of possession was not relied upon by the plaintiff-respondent in this Court; and it was conceded in the course of argument of these appeals that there was no such evidence of possession on the record, as could support the view indicated by the Court below in its judgment. The basis of the decision holding defendants 2, 5, 6 and 7 jointly and severally liable for the claim made by the plaintiff in the suit was that the two mortgages under which these defendants claimed to be the mortgagees were English mortgages, and that on the authority of the decision of this Court in Bengal National Bank Ltd. v. Janaki Nath Ray 1927 Cal 725 a mortgagee in an English form of mortgage, in whom the entire interest of the mortgagor is tr