(1.) The instrument of simple mortgage, dated 22 October, 1892, on which the suit is brought by the plaintiff, the mortgagee, for the recovery of the mortgage debt by sale of the mortgaged property, purports to be a zamindari mortgage, the property mortgaged being the zamindari of the mortgagor, described in schedule No. 2 annexed to the mortgage instrument. The operative part of the instrument of mortgage runs as follows: In respect of the principal, interest, &c, of this document are (mortgaged) the following: The entire zamindari of Palur, which is situate in Chatbrapur Sub- Registry of Ganjam district, which has passed to our possession from our ancestors, which is in our possession and enjoyment, which yields an annual income of about Rs. 9,975, which is described in detail in schedule No. 2 herein, on which is payable annually a peishkusb of Rs. 22 and a land cess of Rs. 463, and which bears zamindari patta No. 364, together with the hills, jungles, cultivated and uncultivated lands, gardens, sources of irrigation, &c , therein, as well as with our entire right and income and the kattubadis on enfranchised inam, --these are mortgaged to you subject to the mortgages mentioned in schedule No 2, but they are retained in our possession.
(2.) Schedule No. 2 specifies the twenty-nine villages constituting the zamindari, with the approximate extent and yearly income thereof, one of such villages (No. 14) being Sabuliya. That village is an inam village of certain Payaks, in which the only right, title and interest which the mortgagor, as zamindar of Palur, possesses, is to the annual payment, by the inamdars, of a fixed kattubadi of Rs. 70, and apparently this is all that is included in the approximate annual income specified in the above schedule. At the date of the mortgage, the zamindar also possessed a mortgage right in the said village, being the assignee, apparently, of a simple mortgage made in 1874, by the Payaks, the inamdars, to one Brindavana Doss, who in 1889 assigned the mortgage to the zamindar.
(3.) The only question raised and argued in the appeal is whether, so far as the village of Sabuliya is concerned, the only interest therein, which was assigned by way of mortgage, to the plaintiff is the zamindar's right to kattubadi, or also the mortgage right possessed by the mortgagor, as assignee of the mortgage granted by the inamdars. It is contended on behalf of the appellant that he is a sub-mortgagee, under the zamindar, of the village of Mabuliya, besides being the mortgagee of the kattubadi payable to the zamindar in respect of it. The question we have to decide is, whether the property mortgaged is the zemindari estate of Palur, or the properties of the mortgagor, situate within the territorial limits of the zamindari. The plaintiff in his evidence admits that he was neither informed, nor otherwise aware of the mortgage interest, which the zamindar had in the above village of Sabuliya; but that whatever rights were possessed by him in the said village were mortgaged to him. He also says in his evidence that he cannot say whether the zamindar handed to him the mortgage deed executed by the inamdars and the deed assigning that mortgage to him. There is little doubt that those documents were not handed to the plaintiff, but retained by the zamindar himself. The zamindar, as assignee of that mortgage, brought a suit against the Payaks, the inamdars, in original Suit No. 44 of 1894, and obtained a decree on the footing of that mortgage. The ninth respondent obtained an assignment of that decree and, in execution thereof, became the purchaser, in 1898, of the village of Sabuliya. The plaintiff was not a party to the said suit, and unless the zamindar acted fraudulently in bringing the said suit to enforce the mortgage granted by the inamdars, it is clear that the zamindar did not consider that he had sub mortgaged the village to the plaintiff. Though the zamindar did not intend to assign his mortgage right in the village by way of sub-mortgage to the plaintiff and he did not consider that he had done so when he brought Original Suit No. 44 of 1894, and though the plaintiff himself was not aware of the mortgage right which the zamindar had in the said village and did not obtain possession of the original mortgage deed, yet, if it appeared clearly, from the instrument of mortgage, that all the interests possessed in fact and law by the mortgagor, in the village of Sabuliya, were assigned to the plaintiff by way of mortgage, it is immaterial that the zamindar did not really so intend and that the plaintiff was not aware of the exact interest which the zamindar had in that village. The determination of the question therefore depends mainly upon the right construction of the instrument of mortgage. The transaction purports to be a simple mortgage of the zamindari of Palur. which bears zamindari patta No. 364, and which has passed to the possession of the zamindar from his ancestors, yielding an annual income of about Rs. 9,976 (the particulars of which are given in Schedule 2 appended to the mortgage instrument), subject to a fixed peishkush of Rs. 22, together with the hills, jungles, cultivated and uncultivated lands, gardens, sources of irrigation, &c, therein, as well as with the zamindar's entire right and income and the kattubadi on enfranchised inams. It is clear that the entire zamindari of Palur, bearing patta No. 364 and subject to a peishkush of Rs. 22, which was mortgaged, is the estate of Palur, which was permanently settled on zemindari tenure under Regulation XXV of 1802. The village of Sabuliya was at the time of the permanent settlement, a jaghir or inam held by the Payaks, subject to the payment of a kattubadi to the zamindar. Under the said Regulation, the permanent settlement was exclusive of the inam (vide Section 4), and included only the kattubadi, which alone was taken as part of the assets of the zamindar.;