(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 Zemindari mortgage, the property mortgaged being the Zemindari 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, etc., of this document are (mortgaged) the following: The entire Zemindari of Palur, which is situate in Chatrapur 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 peishkush of Rs. 22-0-0 and a land cess of Rs. 463-0-0, and which bears Zemindari Patta No. 364, together with the hills, jungles, cultivated and uncultivated lands, gardens, sources of irrigation, etc., therein, as well as with our entire right and income and the Kattubadis on enfranchised inams,--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 29 villages constituting the Zemindari, with the approximate extent and yearly income thereof, one of such villages (No. 14) being Subaliya. This village is an Inam village of certain Payaks, in which the only right, title and interest which the mortgagor, as Zemindar 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 Zemindar also possessed a mortgage-right in the said village, being the a.ssignee 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 Zemindar.
(3.) The only question raised and argued in the appeal is whether, so far. as the village of Subaliya is concerned, the only interest therein, which was assigned by way of mortgage, to the plaintiff, is the Zemindar'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 Zemindar, of the village of Subaliya, besides being the mortgagee, of the Kattubadi payable to the Zemindar, 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 Zemindari. The plaintiff in his evidence admits that he was neither informed, nor otherwise aware, of the mortgage interest, which the Zemindar had in the above village of Subaliya ; but 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 Zemindar 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 Zemindar himself. The Zemindar, as assignee of that mortgage, brought a suit against the Payaks, the Inamdars, in 0.S. No. 44 of 1894; and obtained a decree on the footing of that mortgage. The 9th respondent obtained an assignment of that decree and, in execution thereof, became the purchaser, in 1898, of the village of Subaliya. The plaintiff was not a party to the said suit, and unless the Zemindar acted fraudulently in bringing the said suit to enforce the mortgage granted by the Inamdars, it is clear that the Zemindar did not consider that he had sub- mortgaged the village to the plaintiff. Though the Zemindar 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 0.S. No. 44 of 1894, and though the plaintiff himself was not aware of the mortgage-right Vhich the Zemindar 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 Subaliya, were assigned to the plaintiff by. way of mortgage, it is immaterial that the Zemindar did not really so intend. and that the plaintiff was not aware of the exact interest which the Zemindar 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 Zemindari of Palur, which bears Zemindari Patta No. 364, and which has passed to the possession of the Zemindar from his ancestors, yielding an annual income of about Rs. 9,975 (the particulars of which are given in Schedule No. 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 Zemindar's entire right and income and the Kattubadi on enfranchised Inams. It is clear that the entire Zemindari 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 Subaliya 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 Zemindar. 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 Zemindar.;