Decided on March 24,1900

SUNDAR DAS Respondents


Hobhouse, J - (1.) The plaintiffs below, now appellants, are the representatives in estate of one Nurud Hossein Khan, who on the 17 of October 1788 effected a usufructuary mortgage of the property now in dispute along; with other property to secure the sum of Rs. 105,783 due on bonds to three, several persons. One of the mortgagees was named Sadhu Ram to whom one. of the bonds was owing. In some wary not now apparent a settlement was; made in or about the year 1806 by virtue of which the other creditors were, satisfied and 14 annas of the property released. A two anna share remained as a security to Sadhu Ram, but on the terms of the original mortgage adjusted to the division of interest. It will be convenient to speak of the parties and their successors respectively as mortgagors and mortgagees. The terms of the mortgage are as follows: Until the whole and entire sum the principal aforementioned and interest thereon, whatever that may be by account, is not repaid to the aforenamed persons, the said villages shall remain in the possession and enjoyment of the aforenamed persons: they will year by year take the proceeds thereof and then give, without objection, receipt annually for Rs. 6,201 in part payment of the aforementioned debt. They will with confidence keep cultivating the aforesaid mouzahs. If there be an increase in the proceeds derived from the villages or if there be a decrease, which God forbid, they will take the profit and loss on themselves. I have and will have by no means any concern with the increase or decrease.
(2.) In the year 1817 the mortgagees, having been dispossessed by the mortgagors, sued for possession of their two anna share, and the Court granted them a decree on that footing, adding that if the defendants have any objection as the money of the usufructuary mortgage having been liquidated they are at liberty to bring a separate suit."
(3.) The mortgagors did bring a suit accordingly in the year 1819 praying for possession of the land and return of their bonds on the ground that the mortgagees had been overpaid. By the decree of the District Judge dated 3 October 1820, it was found that the mortgagees had not been paid and the suit was dismissed, but with some directions for the final payment in liquidation of the mortgage and for the restoration of the land in the year 1231 Fasli, A.D. 1824 or thereabouts. This litigation was "continued by appeals to the Provincial Court and thence to the Sudder Dewani Adawlat.On 27 August 1833 a final decree was passed finding that the mortgagees were not paid and dismissing the mortgagors appeal. The mortgagees have been in possession ever since.;

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