Appeal No241 of 1961
Appeal from the judgment and decree dated March 4 1958 of the Patna High Court in Appeal from Appellate Decree No 1335 of 1952
634 RS Sinha and RC Prasad for the appellants
Sarjoo Prasad and B P Jha for the respondents nos
1 and 2
April 3 1964
The judgment of the Court was delivered by DAS GUPTA J
This appeal arises out of a suit for re demption of a large number of usufructuary mortgages in favour of the defendants
The plaintiff who owned 167 acres
of lands which were recorded in Khata 56 and 1056 acres in Khata 57 in village Sarifabad gave 127 acres out of Khata 56 and 824 acres out of Khata 57 lands in mortgage to the several defendants by separate mortgage bonds
Part of the remaining land was sold by him and the rest settled by him with the first defendant on Batai terms
The plaintiff s case is that under the terms of the mortgage bonds the mortgagees were liable to pay rent to the landlord
The mortgagees however defaulted in the payment of rent for some years
A suit for the arrears of rent was brought by the landlord and a decree obtained
In execution of the decree the lands were sold
The purchasers were one Besolal and Mst
Kirti Kuer who according to the plaintiff were only benamidars of defendants 1 and 2 and other mortgagees
It is his case that this purchase enured for the benefit of the mortgagor that is the plaintiff and so the right of redemption of the mortgagees has not been affected
The prayers were for a declarations that the purchase was for the benefit of the plaintiff and for redemption of the mortgagees
The suit was contested by defendants 1 and 2 only
Of these defendants Chamroo Sao is the purchaser and Besolal defendant 2 is the son of the other purchaser Mst
Kirti Kuer
They denied the allegation that Besolal and Mst
Kirti Kuer were their benamidars and contended that the right of redemption has been extinguished by the court sale
The Trial Court held that the plaintiff had failed to show that the auction purchasers were benamidars of the mortga gees and in that view dismissed the suit
On appeal the Additional District Judge Patna came to a contrary conclusion
He held that the put chase though in the name of Besolal and Mst
Kirti Kuer was really by the first and the second defendants
He also accepted the plaintiff s case that under the terms of the mortgage bonds the mortgagees were liable to pay the rent and the rent sale having been brought about due to the default of the mortgagor and the mortgagee they could not be allowed to take advantage of the sale
So according to the learned Judge the equity of 635 redemption in favour of the plaintiff still subsisted and that he was entitled to redeem the mortgaged property
Accordingly he set aside the judgment of the Trial Court and passed a preliminary decree for redemption
Against this decree the two defendants appealed to the High Court of Patna
The appeal came up for hearing in the first instance before a Single Judge Mr justice Sahai
On a consideration of the evidence he was of opinion that the liability of rent of 267 acres was upon defendant I and that payment of rent of 87 acres which was purchased and 176 acres which was taken in ijra the total being 243 acres was upon defendant 2 that for payment of rent of 383 acres was upon the other defendants and the plaintiff was liable to pay the rent of only about 339 acres out of the entire area of 167 acres of Khata No 56 and 1065 acres of Khata No 57
The question which therefore arose was whether section 90 of the Trusts Act would operate to keep the equity of redemption alive in cases where the sale took place due to the default of the mortgagor as well as the mortgagees the default on the part of the mortgagees who purchased the properties at the sale being also substantial
The learned Judge referred this point for decision to a Division Bench
The Division Bench of the High Court held that section 90 of the Trusts Act did not apply to these circumstances
In this view the High Court allowed the appeal set aside the decree of the first appellate court and restored the decree of the Trial Court
The present appeal by Mst
Basmati Devi who is the legal representative of the original plaintiff who was substituted in his place is against the High Court s decision dismissing the suit
In coming to a conclusion that section 90 of the Trusts Act did not apply to cases where the sale took place due to the default of the mortgagor as well as the mortgagee the High Court appears to have followed a number of previous decisions of the same High Court
In support of the appeal it is urged that the view taken by the High Court in the present case as well as the previous decisions of the Patna High Court is incorrect and defeats the very object of section 90 of the Indian Trusts Act
Section 90 of the Indian Trusts Act is in these words 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 636 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
 The question for consideration is whether in circumstances like the present where the decree and the sale in execution of it are brought about by the default of both the mortgagor and the mortgagee the mortgagee can be said to have taken advantage of his position by purchasing the property at the sale
The High Court appears to think that unless the sale was brought about by the default of the mortgagee alone the mortgagee cannot be said to have taken advantage of his position in making the purchases
What seems to have weighed with the learned Judges is that even if the mortgagee had done his duty by paying the rent he was liable to pay the sale would still have taken place as the mortgagor did not pay that portion of the rent which he was liable to pay
So they thought that the mortgagees though they took advantage of the fact that the property had been brought to sale could not be said to have taken advantage of their position as mortgagees
With this view we are unable to agree
In our opinion the fact that the mortgagor had made a default does not alter the position that the mortgagee had also defaulted in paying the rent he was liable to pay
By his default he has contributed to the position that a suit had to be brought for arrears of rent and ultimately to the position that the property was put to sale in execution of the decree obtained in the suit
This contribution to the bringing about of the sale was a direct result of his position as a mortgagee
When therefore he purchased the property himself at the sale in execution of the rent decree he clearly gained an advantage by availing himself of his position as a mortgagee
This in our opinion is the position in law even if the mortgagee s liability was to pay less than the major portion of the rent of the holdings
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
In the present case the finding is that the liability of the defendants 1 and 2 was to pay a substantial portion of the rent
To say in such circumstances that they did not take 637 advantage of their position as mortgagees is entirely unrealistic Such a construction would put a premium on dishonesty on the part of mortgagees whenever the entire burden of payment of rent was not left squarely on the mortgagee as under the provision of s76 of the Transfer of Property Act
Mr Sarjoo Prasad who appeared before us on behalf of the respondents tried to persuade us that in any case the plaintiff s suit should fail as regards the lands recorded in Khata No 57
As according to him these mortgagees were not at all liable to pay any portion of the rent of this holding
He drew our attention in this connection to exhibit 2 the mortgage bond executed in favour of Chamroo Sao and to the statement made therein Annual rent payable to the zamindar is the concern of me the executant
This argument proceeds on the basis that the holding recorded in Khata No 57 continued to be separate and distinct from the Khata No 56
It is thus in direct conflict with the plea of these very defendants in their written statement that the two holdings had been consolidated into one holding with one rental
As the oral and documentary evidence on the Paper Book prepared in the appeal did not clearly show whether or not these two holdings had become one we called for one of the documents exhibit B which seemed likely to throw some light on the matter
The document has now been received
It is the copy of a judgment of a suit between these parties in which this very question viz whether the two holdings had been consolidated into one or not was raised
It was decided hat such consolidation had taken place
It is clear that it was after such consolidation that the second rent suit was brought in respect of that consolidated holding and it was that consolidated holding which was sold in execution of the decree
It is clear therefore that the mortgage bond Ex2 in which the mortgagor accepted liability to pay rent to the zamindar in respect of the mortgaged land in Khata No 57 does not affect the correctness of the High Court s finding that the liability to pay rent of the holding that was sold was partly of the mortgagor and partly of the mortgagees and that it was the default of both the mortgagor and the mortgagees that brought about the sale
Accordingly we allow the appeal set aside the judgment and decree of the High Court and restore the decree made by the Additional District Judge Patna
A Pleader Commissioner shall be appointed by the trial court on a deposit of Rs 50 as his fees by the present appellant within two months from this date for taking accounts as to the amount due to the defendants on the date of the decree
A preliminary decree for redemption shall be passed in the usual terms
As the suit as also the appeal before the District Judge had been brought in forma pauperis the High Court made an order 638 directing the plaintiff to pay the court fee on the plaint as well as on the memorandum of appeal
That order is set aside
Instead we order the first and the second defendants in the suit to pay the court fee payable on the plaint as also on the memorandum of appeal
The present appeal to this Court has also been brought by the appellant as a pauper
As she has succeeded in the appeal we order the contesting respondents ie the first and the second defendants to pay the court fee payable on the memorandum of appeal to this court
The appellant will get her costs from the first and the second defendants through out
Appeal allowed


Summary:
The plaintiff brought a suit for redemption of a large num ber of usufructuary mortgages in favour of the defendants
The case of the plaintiff was that under the terms of the mortgage bonds the mortgagees were liable to pay rent to the land lord
The mortgagees however defaulted in the payment of rent for some years
A suit for arrears of rent was brought by the land lord and a decree obtained
In execution of the decree the lands were sold
According to the plaintiff the purchasers of the mortgaged lands were only benamidars of defendants 1 and 2 and other mortgagees
The plaintiff claimed that the right of redemption was not affected by the Court sale because the purchase was for the benefit of the plaintiff
The suit was contested by defendants 1 and 2 only
Their case was that the right of redemption had been extinguished by the court sale that the purchasers were not the benamidars of the defendants
The Trial Court dismissed the suit
On appeal the Additional District Judge set aside the judgment of the Trial Court and passed a preliminary decree for redemption
Against this decree the two defendants appealed to the High Court
The appeal was heard by the Division Bench
The High Court held that in the present case section 90 of the Trusts Act did not apply because the court sale took place due to the default of the mortgagor as well as the mortgagees
In this view the High Court set aside the decree of the first Appellate Court and restored the decree of the trial court
Held The fact that the mortgagor had made a default does not alter the position that the mortgagee had also defaulted in paying the rent he was liable to pay
By his default he has contributed to the position that a suit had to be brought for arrears of rent and ultimately to the position that the property was put to sale in execution of the decree obtained in the suit
This contribution to the bringing about of the sale was a direct result of his position as a mortgagee
When therefore he purchased the property himself at the sale in execution of the rent decree he clearly gained an advantage by availing himself of his position as a mortgagee
This is the position of law even if the mortgagee s liability was to pay less than the major portion of the rent of the holdings
In this view section 90 of the Trusts Act applies to the facts of this case