Usafructuary mortgage and lease back.

This Civil Miscellaneous Second Appeal raises an interesting question of law bearing on the provisions of Order 34, rule 14, Civil Procedure Code. The following are the circumstances giving rise to this question. The appellants executed a usufructuary mortgage in favour of one Kodotha Ambu Nair on 7th September, 1916 to secure a sum of Rs. 12,500. This mortgage amount was made up of Rs. 8,000 due in respect of an earlier mortgage in favour of the same mortgagee, Rs. 2,000 being the sum in respect of a mortgage deed executed in favour of the mortgagee’s elder brother, Rs. 1,874 being the arrears of rent due under a lease back in respect of the earlier mortgage and the balance being the cash paid to the mortgagor for his necessities. The period of redemption fixed in the mortgage was 20 years. It was also mentioned therein that in respect of this property the mortgagor had executed a geni chit (a lease back) in favour of the mortgagee. But the geni chit was actually, executed only on the next day and this was for a period of one year. The rent stipulated under the geni chit was 772½ paras of paddy per year besides paying to the Government the assessment Rs. 166-10-0. The arrears of rent were charged on the property mortgaged The mortgagor lessee did not pay the rent regularly and allowed it to fall into arrears with the consequence that the mortgagee filed a suit for the recovery of the arrears of rent and obtained a decree for Rs. 2,455 inclusive of costs. As this decree was not satisfied, execution of it was sought and the properties, which were the subject matter of the mortgage and the lease, were attached. On notice the judgment debtors raised an objection to the attachment of their properties based on Order 34, rule 14, Civil Procedure Code.

The trial court overruled the objection holding that the provisions of Order 34, rule 14, Civil Procedure Code had no application and allowed the execution to proceed. The two grounds, on which he came to this conclusion, were that the mortgage and the lease back were not simultaneous and that both the documents did not cover the same period. The appeal filed by the judgment-debtors to the District Judge did not prove successful as the appellate Judge agreed with the opinion of the trial Court as regards the applicability of Order 34, rule 14 to the present case. The judgment-debtors who were aggrieved by this decision have preferred the second appeal.

In support of this appeal, Mr. Nambiar contended that the view of the Courts below that the circumstances that both the documents were not executed on the same date and that the periods fixed in both the documents are not co-extensive show that the mortgage and the lease back did not form part and parcel of the same transaction, is erroneous and that neither of these circumstances is an indication that they are two separate and severable transactions. I think I must give effect to this contention. That in order to treat both the documents as one transaction it is not necessary either that both the mortgage and the lease back should have been embodied in one document or that they should have been executed on one and the same date is clear from a number of rulings. I do not think that proposition can admit of any controversy. One essential condition is that at the time of the execution of the mortgage the lease back should have been in contemplation.

With regard to the other consideration namely that the two documents are for varying periods of operation, Mr. Nambiar urged that it cannot determine the question whether in substance and in reality they formed one transaction. In support of this contention reliance is placed on the observations of a Bench of Patna High Court in Umeshwar Prasad v. Dwarika Prasad1where the learned Judges observed that

“such a transaction may be evidenced by more than one document which may have been executed on different dates with varying periods of their operation and possibly, even in the name of dif