Appeal No 180 of 1963
Appeal by special leave from the judgment and decree dated February 19 1958 of the Patna High Court in Appeal from Appellate Decree No 919 of 1954
Sarjoo Prasad and B P tha for the appellants 159 A V Viswanatha Sastri B K P Sinha and A G Ratna parkhi for the respondent
The Judgment of the Court was delivered by Bachawat J
The plaintiffs appellants instituted Title Suit No 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 1000 and Rs 1300 respectively
The mortgage dated July 5 1927 was in respect of 720 acres of occupancy raiyati lands consisting of four plots Nos
149 155 955 and 957 in village Hichapur under the Tikari Raj
The mortgaged lands were part of a larger holding of 2369 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 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 720 acres of lands in village Utrain tinder kahas mahal
The mortgaged lands were part of a larger holding of 1988 12 acres in khata No 269
The rent of the entire holding was Rs 155 4 0
The mortgage 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 pay able 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 consistently 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 consistently paid Rs 68 annually but did not pay the balance sum of 10 annas 9 pies whereas the mortgagors consistently defaulted 160 in payment of the sum of Rs 86 9 3 payable by them annually on account of the total rent
The trial Court decreed the suit
The first appellate Court allowed the appeal in part passed a decree for redemption of 393 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 withdraw Rs 1000 deposited by the plaintiff in respect of the mortgage dated July 5 1927
The High Court dismissed a second appeal preferred by the plaintiffs
The plaintiffs now appeal to this Court by special leave
The plaintiffs contend that the purchases at the rent sale and the certificate sale were made by the mortgagee by availing himself of his position as such and having regard to section 90 of the and Illustration c to it the purchases enured for the benefit of the plaintiffs and they are entitled to redeem the entire mortgaged lands
The defendant mortgagee disputes this contention and claims that the aforesaid sales extinguished the equity of redemption
Section 90 of the and Illustration c to it are as follows  Where a tenant for life co owner mortgagee or other qualified owner of any property by availing himself of his position as such gains an advantage in derogation of the rights of the other persons interested in the property or where any such owner as representing all persons interested in such property gains any advantage he must hold for the benefit of all persons so interested 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 possession
B allows the Government revenue to fall into arrears with a view to the land being 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 properly incurred as mortgagee B holds the land for the benefit of A 161 In Basmat Devi vs Chamru Sao1 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 passing 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 section 90 of the his purchase must inure for the benefit of the mortgagor and the mortgagor was entitled to redeem the mortcaged property
In that case Das Gupta J observed Whether this 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 almost 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 so 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 mortgagee 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 section 90 of the and Illustration c to it are not attracted and the purchase by the mortgagee does not inure for the benefit of the mortgagors
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
The first appellate Court however gave a decree for redemption of 393 acres of plot No 955 in Hichapur village and gave 1  162 liberty to the mortgagee to withdraw the entire sum of Rs 1000 deposited by the plaintiffs in respect of the mortgage of the Hichapur lands
Before the High Court the plaintiffs contended relying upon the last paragraph of section 60 of the  that they were entitled to redeem the aforesaid 393 acres of Utrain lands on payment of the proportionate amount of the mortgage money payable under the mortgage dated July 5 1927
The High Court negatived this contention
The Courts below observed that 393 acres of plot No 955 of the Hichapur lands were not sold at all at the sale held on June 18 1934 but quite inconsistently 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 omitted to mention the 393 acres of plot No 955
The relevant documents are not printed in the paper book
Having regard to the value of the subject matter in dispute it is not worthwhile to call for a fresh finding on this point
We therefore 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 Utrain lands were purchased by the defendant at the rent sale
On this footing the last paragraph of section 60 of the can have no application
The plaintiffs appellants do not now own the equity of redemption in any portion of the Hichapur lands
The Courts below therefore should have dismissed the entire suit for redemption and the question of redemption of a portion of the property on payment of a proportionate amount of the mortgage money does not properly arise in this case
However the first appellate Court gave a decree for redemption of the aforesaid 393 acres of land
The High Court affirmed this decree and there is no cross appeal by the defendant respondent
In the circumstances the decree passed by the Court below must be maintained
In the result the appeal is dismissed with costs
Appeal dismissed


Summary:
The ancestors of the appellants created usufructuary mortgages in favour of the respondent
The mortgaged property was a part of a larger holding
The mortgagee respondent had 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 for several years in payment of the rent
The mortgagee paid almost the entire amount of the rent but defaulted in the payment of a trifling sum
The landlord obtained a decree for arrears of rent and at rent sales the mortgagee pur chased the lands
The appellant s mortgagors filed a suit for redemption of the mortgage which was decreed by the trial court
The mortgagee appealed which was allowed in part passing a decree for redemption of a small plot only on the ground that this portion of land was not sold at the rent sale
The mortgagors  appeal to the High Court was dismissed
In appeal by special leave the mortgagors contended that the purchases at the rent sale and the certificate sale were made by the mortgagee by availing himself of his position as such as having regard to section 90 of the and Illustration c to it
the purchases enured for the benefit of the mortgaors and they were entitled to redeem the entire mortgaged lands
HELD  The portion of the rent which the mortgagee failed to pay was so small that it was 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 site of the property
It was not shown that non payment of the titling sum by the mortgagee 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 default
The real effective cause of the sale was the default of the mortgagor alone
L161 E G In the circumstances section 90 of the and Illustration c to it were not attracted and the purchase by the mortgagee did not enure for the benefit of the mortgagors
The rent sale and the certificate sale extinguished the right of redemption
161 G H Basmat Devi vs Chamru Sao   referred to