9th Feby. 1907.

and another (1), Gopal Sahai v. Mussammat Hussain Bibi (2), and Saudagar Singh v. Sant Ram (3), on the one hand and on the other Gomess and another v. Mela Ram (1) and the judgment of Mr. Justice Chitty in Civil Revision No. 355 of 1906 which I understand is supported by a Division Bench ruling of which I have not been able to obtain the particulars. The weight of authority is in favour of the view propounded in the first set of rulings, which is, that the mortgage is in that case wholly avoided and carries no lien with it. I am myself not free from doubt as to the correctness of this opinion and the point is an important one, which frequently comes up for decision. I regard the law on this point as in an unsatisfactory state as far as this province is concerned, and think that it ought to be clearly propounded by a Fall Bench.

I accordingly refer the question to a Full Bench. It is sufficiently set out in the foregoing judgment.

I leave on record that after hearing counsel I over-rale the grounds of appeal relating to the capacity of Rahman, respondent, to affect a valid mortgage of his minor brother's share, and hold that he has no such power and that the minor has not in any case received full benefit from the mortgage.

The Fall Bench reference arises only in the case between Rahman and the mortgagees.

The following opinions were recorded by the learned Judges constituting the Fall Bench :

REID, J.-The question referred is the effect, on a mortgage with possession, of failure by the mortgagee to pay off the prior incumbrances, payment of which constituted part of the mortgage consideration: Gomes v. Mela Ram (*), and Civil Revision 335 of 1906 have been relied on for the appellant as authority for the proposition that in spite of failure to pay the whole consideration promptly the mortgagee was entitled, in the absence of a special contract to the contrary, to possession, the remedy of the mortgagor being a suit for damages for breach of the contract to pay the consideration. Elsmie, J., who was a party to the Judgments in Ala Bakhsh v. Shama (1), and Gomess v. Mela Ram (*), distinguished the latter case from the former on the ground that in the latter there was no contract as to the time for payment, and tender of the unpaid balance made within 1 a,,prima facie reasonable time."

Was

Plowden, S. J., drew no such distinction, and hell that failare to pay promptly afforded no defence to a sait by a mortgagee for possession, coupled with tender of the consideration due. In Civil Revision 335 of 1906 Chitty, J., distinguished the facts from those in Gopal Sahai v. Mussammat Hussain Bibi (1), in that the mortgagee in the 1906 case undertook to pay off certain prior incumbrances and the amounts so payable were not to pass through the mortgagor's hands, and no time was fixed for these payments. The learned Judge held that the mortgagors could not plead that the mortgage was incomplete merely because the prior incumbrances had not been paid off, and they had themselves paid some of them. I regret that I am unable to concur in these expositions of the law. Prior incumbrancers are not bound by the contract between the mortgagor and a puisne incumbrancer, and the filars of the litter to pay off prior incumbrances exposes the mortgagor to the risk of suits by prior incumbrancers. In my opinion the rule applicable is the same whether payment to the mortgagor or to a prior incumbrancer is contracted for. In either case the mortgagor is entitled to prompt payment, and failure to pay promptly avoids the mortgage. The rule contended for by counsel for the appellant would deprive the mortgagor of the benefit to be derived by him from the mortgage, viz., the realisation of money or the freedom from the claims of prior incumbrancers; and in my opinion, the mortgagee cannot put the mortgagor to the risk of inconvenience by delay in payment without losing the benefit of his contract and his right to possession. The mere undertaking to pay a third party does not constitute payment, Ala Bakhsh v. Shama (2), and Cha lan Lall v. Nihal (3), Mangal Singh v. Jindan (*), Gopal Sahai v. Mussammat Hussain Bibi (*), Saudagir Singh v. Sant Ram (*), are authority for the conclusion that delay in payment, either to the mortgagər or to a prior incumbrancer, after such payment has been demanded by the mortgagor, avoids the mortgage and destroys the mortgagee's lien and right to possession even on subsequent tender of the unpaid consideration, in the absence of a specific contract postponing payment, it being immaterial whether the delay has or has not caused inconvenience or loss to the mortgagor. This is my answer to the reference, and the result admittedly is that the appeal fails and is dismissed with costs, no other point having been left undecided by my brother Chatterji, who made the reference,

12th Feby. 1907.

13th Feby. 1907.

ROBERTSON, J.-I agree in the reply to the reference. There may be cases in which the consideration for a mortgage is, in whole or in part, an undertaking on the part of the mortgagee to take the discharge of prior incumbrances on his shoulders. In such a case the result might be different. But where the consideration is cash and a certain portion of the money is left with the mortgagee for prompt payment to a third person, failure to pay such sum within a reasonable or specified time in my opinion voids the mortgage. With these remarks I concur in the reply of my brother Reid to the reference.

LAL CHAND, J.- I agree that failure to pay the consideration money as agreed upon whether to the mortgagor or to a prior incumbrancer avoids the mortgage. I further consider that in the absence of any express and direct stipulation in the deed of mortgage postponing payment for a specified time it will be presumed that payment is intended to be made immediately or within a reasonable time according to the facts and circumstances of each particular case. With these remarks I concur in the answer given to the reference by my learned colleagues and in dismissing the appeal with

costs.

APPELLATE SIDE.

Full Bench.
No. 60.

Before Mr. Justice Chatterji, C.I.E, Mr. Justice Robertson and Mr. Justice Rattigan.

JALLA AND OTHERS,—(DEFENDANTS),-APPELLANTS,

Versus

GEHNA AND OTHERS,-(PLAINTIFFS),-RESPONDENTS.

Civil Appeal No. 53 of 1905.

Valuation of suit-Suit to declare an alienation of land to be not binding after alienor's death-Value for purpose of further appeal-Punjab Courts Act, 1884, Section 40 (b).

Held, by the Fall Bench that for the purposes of Section 40 (b) of the Punjab Courts Act, 1884, the value of a suit for a declaration that a sale by a male proprietor of ancestral agricultural land would not be binding after tue alienor's death, is the value of the land calculated at thirty times the revenue, and not the amount of the consideration of the sale in dispute.

Further appeal from the decree of A. E. Martineau, Esquire,
Divisional Judge, Lahore Division, dated 19th October 1904.

Dani Chand, for appellant.

Tirath Ram, for respondents.

This was a reference to a Full Bench made by Robertson and Rattigan, JJ., to determine the value for purposes of Section 40 (b) of the Panjab Courts Act, 1884, of a suit for a declaration that a sale of ancestral agricultural land by a male proprietor would be void after the alienor's death.

The facts of this case are as follows:

Plaintiff sued for a declaration to the effect that a sale of land effected by their father in favor of defendants 2 and 4 by a deed of sale, dated 8th November 1900, for an alleged consideration of Rupees 400 should not affect their reversionary rights.

The first Court dismissed the suit with costs, but the Divisional Judge on appeal reversed this finding and decreed the claim as prayed. Defendants preferred a further appeal to the Chief Court; but as the subject matter of the suit was agricultural land assessed to land revenue, which a mounted to Re. 1-12-0 only, the plaintiff contended that no further appeal lies. Thereupon the question whether under the circumstances of the case a further appeal lay to the Chief Court under Section 40 (1) (b) (i) of the Punjab Courts Act, 1884 as amended, was referred by the learned Judges of the Div sicr Berck to a Full Bench.

The judgment of the Full Bench, so far as is material for the purposes of this report, was delivered by

BATTIG AN, J.-Our answer to the reference is that the 15th June 1906. rule as laid down in Bakhu V. Jhanda (1) is correct and that in accordance there with it must be held that no further appeal lies in this case, the value of the land for jurisdictional purposes being, under the rules made under Section 3 of the Suits Valuation Act, less than Rs. 250.

(1) 145 P. R., 1892.

Full Bench.

No. 61.

Before Sir William Clark, Kt., Chief Judge, Mr. Justice Reid,
Mr. Justice Chatterji, C.I.E., Mr. Justice Robertson,
Mr. Justice Kensington, Mr. Justice Johnstone, Mr.
Justice Rattigan, Mr. Justice Chitty and Mr. Justice
Lal Chand.

GANGA RAM,-(PLAINTIFF),-APPELLANT,

Versus

DEVI DAS,- (DEFENDANT),-RESPONDENT.

Civil Appeal No. 1021 of 1905.

Legal practitioners-Back fee-Payment to be made contingent on success- -Illegal and improper contract-Public policy-Contract Act, 1872, Section 23.

Held by a majority (Chatterji and Lal Chand, JJ., dissenting) that agreements between legal practitioners and their clients making the remuneration of the legal practitioner dependent to any extent whatever on the result of the case in which he is retained are illegal as being contrary to public policy, and legal practitioners entering into such agreements are therefore guilty of professional misconduct and render themselves liable to the disciplinary action of the Court.

Per Lal Chand and Chatterji, JJ., contra that the practice of receiving back fee is neither opposed to public policy nor improper as regards a legal practitioner, other than members of the English bar, enrolled under the Legal Practitioners Act, 1879.

Further appeal from the decree of the Divisional Judge of Multan Division, dated 4th June 1904.

This was a reference to a Full Bench made by Chatterji and Kensington, JJ., to determine whether it is legal and proper for a legal practitioner to make his remuneration in a case contingent on the success of the case.

The incidents which caused the consideration by the Court of the question of the propriety of the back fee system in the Punjab were as follows:

On an application having been made to restore the above appeal dismissed in default, it appeared that the counsel retained by the appellant did not appear at the hearing on account of his back fee not having been deposited. Thereupon the question of the legality and propriety of the back fee system as prevailing among the legal practitioners in the province was referred to a Full Bench.