Sachidanand Prasad v. Babu Sheo Prasad Singh
Bachawat, J. The plaintiffs-appellants instituted Title Suit No.
B 91 of 1950, out of which this appeal arises, for redemption of
two usufructuary mortgages created by plaintiff No. 1 and ancestors
of plaintiffs Nos. 2 to 6 dated July 5, 1927 and April 15, 1928 in
favour of the defendant for Rs. 1,000 and Rs. 1,300 respectively.
The mortgage dated July 5, 1927 was in respect of 7 .20 acres of
occupancy raiyati lands, consisting of four plots Nos. 149, 155, 955
C and 957~ in village Hichapur under the Tikari Raj. The mortgaged
lands were part of a larger holding of 23.69 acres under khata No.
59, and the annual rent of the entire holding was Rs. 153-3-0.
The mortgage deed provided that the mortgagee would pay
Rs. 33-14-9 out of the total rent payable to the landlord and the
mortgagors would pay the balance rent. There was default in
D payment of rent for several years. The landlord obtained a decree
for arrears of rent, and at the rent sale held on June 18, 1934,
the mortgagee-defendant purchased the Hichapur lands in the farzi
name of Dwarkalal.
The mortgage dated April 15, 1928 was in respect of 7.20
acres of lands in village Utrain under kahas mahal. The mortgaged
lands were part of a larger holding of 19.88t acres in khata No.
269. The rent of the entire holding was Rs. 155-4-0. The mort
gage deed provided that the mortgagee would pay Rs. 68-10-9 out
of the total rent and the balance rent would be payable by the
mortgagors. There was default in payment of rent for several
years. Certificate proceedings were started for the recovery of
the arrears of rent, and at a certificate sale held on January 22,
1934, the Utrain lands were purchased by the defendant in the
farzi name of Deonarain.
It appears that out of the sum of Rs. 33-14-9 payable by the
mortgagee annually on account of the rent of the Hichapur lands,
the mortgagee consistently paid Rs. 33 annually, but did not pay the
balance sum of 14 annas 9 pies, whereas the mortgagors consis
tently defaulted in payment of the sum of Rs. 119-4-3 payable by
them annually on account of the total rent. It also appears that out
of the sum of Rs. 68-10-9 payable by the mortgagee annually on·
account of the rent of the Utrain lands, the mortgagee consis
tently paid Rs. 68 annually but did not pay the balance sum of
10 annas 9 pies, whereas the mortgagors consistently defaulted
in payment of the sun: uf Rs. 86-9-3 payable by them annually on A
account of the total rent.
The trial Court d~creed the suit. The first appellate Court allow
ed the appeal in part, passed a decree for redemption of 3.93 acres
of plot No. 955 only on the ground that this portion of the land
was not sold at the rent sale and gave leave to the defendant to B
withdraw Rs. 1,000 deposited by th~ plaintiff in respect of th~
mortgage dated July 5. l 927. The High Court dismissed a se:ond
appeal preferred by the plaintiffs. The plaintiffs now appeal to
this Court by special leave.
The pbintiffs contend that the purchases at the rent sale and C
the certilicate sale were made by the mortgagee by availing himself
of bis position as such and having regard to s. 90 of the Indian
Trusts Act and 111ustration (c) to it. the purchases cnurcd for the
bendit of the plaintiff, :.ind they arc cntitkd to rcd~cm tile entire
mort1rnged lands. The defendant-mortgage~ disputes this conten
tion, and claims that the aforcs:iid sales extinguished the equity D
of redemption.
Section 90 of th' Indian Trusts Act and Illustration (c) to it
are as follows :
"Whcr-: a tenant for life, co-owner, mortgage~ or
other qualified owner of any property. by availing him- E
self of his position as such, gains an advantage ia
derogation of the rights of the other persons interested in
the property, or where any such owner, as repre•enting
all persons interested in such property, gains any advant-
age, he must hold. for the benefit of all persons so inte-
rested. the advantage so gained, but subject to repayment
by such persons of their due share of the expenses
properly incurred, and to an indemnity by the same
persons against liabilities properly contracted, in gaining
such advantage.
(c) A mortgages land to B, who enters into posses
sion. D allows the Government revenue to fall into
arrear with a \'icw to the land b~ing put up for sale and
his becoming himself the purchaser of it. The land is
accordingly sold to B. Subject to the repayment of the
amount due on the mortgage and of his expenses pro
perly incurred as mortgag~c. B holds the land for the
benefit of A." :
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SACHIDANAND V. SHEOPRASAD (Bachawat, J.) 161
In Basmat Devi v. Chamru Sao('), a part of one entire hold-
ing was mortgaged, both the mortgagor and the mortgagee were
liable to pay the rent of the holding, both of them defaulted in
payment of the rent, the default of both contributed to the pass
ing of a rent decree and the sale of the holding in execution of.
the decree, the default of the mortgagee being substantial, and the
mortgagee purchased the holding at the execution sale. On these
facts, this Court held that the mortgagee clearly gained an advantage
by availing himself of his position as such, and having regard to
s. 90 of the Indian Trusts Act his purchase must enure for the
benefit of the mortgagor, and the mortgagor was entitled to redeem
the mortgaged property. In that case, Das Gupta, J. observed :
"Whether tills would be true even where the portion
which the mortgagee is liable to pay is so very small that
the property is not ordinarily likely to be brought to sale
for that amount, it is unnecessary for us to decide in the
present case."
The question left open by Das Gupta, J. arises for decision
in the present case. This is a case where the mortgaged property
is part of a larger holding, the mortgagee agreed to pay a portion
of the rent of the entire holding, and the mortgagors agreed to pay
the balance rent payable in respect of it. The mortgagors defaulted
in payment of the rent payable by them. The mortgagee paid al-
E most the entire amount of the rent payable by him but defaulted
in payment of a trifling sum. The portion of the rent which the
mortgagee failed to pay is s~ small that it is impossible to say
that the property was brought to sale for it or that his default was
in any real sense a contributory cause of the sale of the property.
It is not shown that non-payment of the trifling sums by the mortg
agee was made mala fide or with the ulterior object of the property
being put up for sale and his becoming the purchaser of it. The
mortgagee did not gain any advantage by availing himself of his
position as such or of a situation brought about by his own
default. The real effective cause of the sale was the default of
the mortgagors alone. In the circumstances, s. 90 of the Indian
Trusts Act and Illustration (c) to it are not attracted, and the pur
chase by the mortgagee does not enure for the benefit of the ·mortga
gors. The rent sale and the certificate sale extinguished the right
of redemption. Consequently, the suit by the mortgagors for
redemption of the mortgaged property is liable to be dismissed.
H The first appellate Court, however, gave a decree for redemp-
tion of 3.93 acres of plot No. 955 in Hichapur village and gave
(I) A.l.R. 1964 S.C. 1707.
liberty to the mortgagee to withdraw the entire sum o( Rs. l ,000
deposited by the plaintiffs in respect of the mortgage of the Hicha
pur lands. Defore the High Court the plaintiffs contended. relying
upon the last paragraph of s. 60 of the Transfer of Property Act.
1882, that they were entitled to redeem the aforesaid 3.93 acres of
Utrain lands on payment of the proportionate amount of the mortg
age money payable under the mortgage dated July 5, 1927. The
High Court negatived this contention. The Courts below observed
that 3.93 acres of plot No. 955 of the Hichapur lands were not
sold at all at the sale held on June 18, 1934. but quite inconsis
tently, the Courts below also observed that the aforesaid sale held
on June 18, 1934 was a rent sale and was made in execution of a
rent decree. Learned counsel on behalf of both parties conceded
before us that there could be no rent sale in respect of a portion of
the holding. It may be that there was a rent sale, and by mistake,
the sale certificate omined to mention the 3.93 acres of plot No.
955. The relevant documents arc not printed in the paper book.
Having regard to the value of the subject-mailer in dispute, it is
not worthwhile to call for a fresh finding on this point. We. there
fore, indicated to counsel on both sides in course of the argument
that we shall decide this appeal on the footing that the sale held
on June 18, 1934 was a rent sale and the entire Ltrain lands were
purchased hy the defendant at the rent s<llc. On this footing, the
last paragnph of s. 60 of the Transfer of Property Act, 1882 can
have no application. The plaintiffs-appellants do not now own
the equity of redemption in any 110rtion of the Hichapur lands.
The Courts below, therefore, should have dismi~scd the entire suit
for redemption, and the question of redemption of a portion of
the property on payment of a proportionate amount of the mortg
age money does not properly arise in this case. However, the first
appellate Court gave a decree for redemption of the aforesaid 3.93
acres of land. The High Court affinned this decree, and there is
no cross-appeal by the defendant-respondent. In the circumstances,
the decree passed hy the Court below must he maintained.
In the result, the appeal is dismissed with costs.
Appeal di.\'/nis.<ed.
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