and, as the execution of that decree was barred by limitation, that plaintiff's title to the land in dispute was extinguished. Baboo Mohesh Chunder Chowdhry and Baboo Bohidonath Dutt, for Respondent. The judgment of the Court was delivered by JACKSON, J.:— In respect of that part of the plaintiff's suit which is now before us, and which relates to a claim to eight annas share in lands, touching which she had previously brought a suit and obtained a decree, it appears to me that she is clearly barred. Having obtained a decree in respect of that eight annas share, she was bound to execute that decree unless she could get into possession amicably or otherwise. That she did not do, and it seems that, some time after the decree by compromise was arrived at, she endeavoured to get into possession, but possession was refused. It lay upon her then to take the necessary steps within the time prescribed by law for executing her decree. She did not do that, but has brought a fresh suit. The law does not allow her to do so; for regard being had to the circumstances, it seems that she is in fact reverting to her original cause of action, viz., withholding possession of the eight annas share to which she was originally entitled. It appears to me that the judgment of the lower Appellate Court is erroneous and must be reversed with costs. 1 JACKSON and McDONELL, J.J. 1877 GOPI MOHUN v. TINCOURI GUPTA. Judgment. JACKSON, J. In ascertaining whether a deed, confessedly ambiguous, amounts to an usufructuary mortgage or to a lease in perpetuity, the Judge should look within the four corners of the instrument before him, and ascer tain from it what kind of transaction the parties had in view when they entered into it. In the case of an usufructuary mortgage, where no term is specified, the mortgagor is entitled to re-enter on the property when, on taking an account, he is able to show that the principal and interest have been satisfied. SPECIAL AL APPEAL from a decree passed by the District Judge of Bhaugulpore, affirming that of the First Subordinate Judge of that District. This was a suit for khas possession, and turned on the construction of an instrument, the terms of which are briefly these :-The plaintiffs' ancestors covenant to give the defendants' ancestors a farming lease for the term of the plaintiffs' mokurrari (ticca tabhali mokurrari); it is again recited in another part of the deed that the farming lease is to hold good as long as the mokurrari itself holds good (lagait bhali mokurrari khad), at an annual rent of Rs. 19, in consideration of payment of the sum of Rs. 1,450; it is further stipulated that, if plaintiffs' mokurrari tenure should be extinguished by resumption on the part of Government, the defendants, and not the plaintiffs, shall be entitled to take a settlement of the village from Government, unless the latter repay to the former the consideration money (here described as zuripeshgi), in which case the plaintiffs, and not the defendants, would be entitled to the settlement. Plaintiffs contended that the transaction was an usufructuary mortgage; defendants, that it was a lease in perpetuity. Evidence 1877 was given that at the time the deed was entered into, July 18th, 1845, both parties apprehended that Government would resume LALA DOUL the tenure. NARAIN AND RUNJIT OTHERS. The Court of First Instance held that the transaction was a mortgage, but dismissed the suit on the ground that plaintiffs had SINGH AND not proved the mortgage debt was satisfied. Both parties appealed. The Judge dismissed plaintiffs' appeal, and decreed that of defendants', holding that the transaction amounted to a lease in perpetuity. Plaintiff then brought this Special Appeal. Messrs. Twidale and Sandel, for Appellants. Baboo Mohesh Chunder Chowdhry, Baboo Kashi Kant Sen and Baboo Hem Chunder Banerjee, for Respondents. The judgment of the Court' was delivered by JACKSON, J.: The plaintiff in this case does not claim to put an end to the tenure granted by him in consideration of the advance, unless it so happened that the proceeds of the estate in the hands of the lessee had been sufficient to satisfy both principal and interest. I think the Subordinate Judge took a correct view of the matter, when he considered that he had to look within the four corners of the instrument before him, and to ascertain from it what kind of transaction the parties had in view when they entered into it. It is too familiar to excite surprise, that parties entering into agreements, even in respect of immoveable property to which they attach so much importance, do not resort to competent advisers for the preparation of their documents, but draw up those instruments with such assistance as is to be had in the immediate vicinity of their homes. The result is, that the greatest embarrassments constantly arise in our Courts in construing these documents. Now, it seems to me that, in considering the terms of the document before us, the Subordinate Judge is also right in attaching to it the meaning of a mortgage. The word used is ticca, the receipt of a zuripeshgi is recited, and an express provision is also made for re-entry on the part of the 1 JACKSON and McDONELL, J.J. JACKSON, J. 1877 NARAIN AND OTHERS RUNJIT OTHERS. lessors, irrespective of any term, upon re-payment of the amount LALA DOUL advanced, on the occurrence of a particular contingency. That contingency, it appears from the evidence as well as from the terms of the document, was the resumption of the tenure by the SINGH AND Government, which was anticipated though it did not occur; and the instrument provided that, when settlement was to be made Judgment. with the party entitled, the lessee was to be entitled to take the JACKSON, J. Settlement unless the lessor repaid the advance, and in that way qualified himself for taking the settlement. That apprehended contingency, to my mind, fully explains the passage occurring in the deed, to which so much importance has been attached by the defendant, viz., ticca tabhali mokurrari. It means not so long as in the ordinary course of things it would last, that is, for ever; but so long as the mokurrari is undisturbed, and that was in expectation of a disturbance likely to happen within a certain time. These facts taken together appear to me distinctly to show that what the parties had in their contemplation was a transaction in the nature of a mortgage. Baboo Mohesh Chunder Chowdhry is quite right in saying that in such cases, where the term is provided, it is immaterial whether the principal and interest has been re-paid, the mortgagee being entitled to retain possession, on payment of the ticca rent, for the whole of the term. In this case there is no term specified. But I think, in accordance with the ordinary rule, the mortgagor is entitled, where no term is specified, to re-enter on the property if, on the taking of an account, he is able to show that the principal and interest have been satisfied. That being so, I think the judgment of the lower Appellate Court is erroneous, and that the case must go back to that Court in order that it may determine on the appeal of the plaintiff whether the amount of advance, together with the interest, has been paid. We do not, under the circumstances, give any costs in this appeal. Accretion-Re-formation on old site-Adverse possession. It was decided in Lopez's case (13 Moore's Ind. App., 467; 14 W. R., 11, P. C.; 5 B. L. R., 521) that where property is wholly submerged by a river, any land forming afterwards on the site will, when the ownership of that site is proved to exist in the former owner, remain in him, and the accretions will not belong to the adjacent proprietor. This rule cannot, however, be taken to apply to land in which, by long possession or otherwise, another party has acquired an indefeasible title. Although, in the case of a wandering and navigable stream, the bed of the river may be said temporarily to belong to the public domain, that state of things exists only while the water continues to run over the ground. THESE HESE were two out of seven appeals to the Privy Council from decrees passed by the Calcutta High Court. The judgment of that Court will be found reported in 22 W. R., 238. The facts of the case are sufficiently set forth there and in the following judgment of their Lordships' of the Privy Council: The appeals of which their Lordships have now to dispose are those which the appellant has preferred in two out of seven suits instituted by him in order to recover a large quantity of alluvial land lying now to the south of the Ganges, and accordingly transferred by order of the Government from the zillah of Ghazeepore 1 Sir JAMES COLVILE, Sir BARNES PEACOCK, Sir MONTAGUE E. SMITH, Sir ROBERT P. COLLIER. |