Appeals Nos
1038 1040 of 1967
Appeals by certificate under Article 133 of the Constitution of India from the judgment and decree dated August 7 1962 of the Patna High Court in Original Decrees Nos 38452 1155 and 255
1017 R C Prasad for the appellant Jagadish Swarup K K Sinha section K Sinha and B B Sinha for respondents Nos
1 4 in CA No 1038 of 1967 for respondents 1 a  2 in CA No 1039 of 1967 and for respondents Nos 1 2 4  5 in CA No 1040 of 1967
The Judgment of the Court was delivered by Ray J
These three appeals are by certificate against the judgment dated 7 August 1962 of the High Court at Patna
The High Court allowed in part the appeals filed by the appellant by decreeing in part the suits filed by the appellant for redemption of mortgages
The High Court dismissed the appellant s prayer for mesne profits
The appellant filed three suits for redemption
Title Suit No 54 of 1950 filed by the appellant was with respect to Ijara bond dated 21 April 1920 in favour of Ram Baran Singh for Rs 2300 
Title Suit No 55 of 1950 was filed by the appellant with respect to another ljara bond dated 21 April 1920 in favour of Inder Singh for Rs 1293 12 0
The third Title Suit No 56 of 1950 was filed by the appellant with respect to the third Ijara bond dated 21 April 1920 in favour of Raj Kumar Mahto for Rs 1150 
The bond was subsequently assigned to one Sheo Sharan Singh whose sons were defendants in that suit
These bonds were executed by Maik Nizammuddin
These three bonds were mortgage bonds in respect of certain Milkiyat share in village Keoran Mauzume Makhdumpur in the District of Patna
The appellant was the purchaser of the Milkiyat share of Nizammuddin from his heirs by a deed dated 22 May 1946
The appellant alleged as follows
There are baksht lands within the said Milkiyat share covered by the Ijara bonds
These bakasht lands were the subject matter of the mortgage
After he purchase the appellant endered the ljara money to the respondents who were ijaradars or mortgagees
The respondents refused to accept the money
The appellant thereupon deposited the mortgage money
The appellant served notice of the deposit on the respondents
The respondents did not withdraw the ijara money
They did not deliver possession of the Milkiyat share and the bakasht lands to the appellant
The appellant therefore filed suits for redemption and for possession
The appellant also claimed mesne profits
The respondents in the written statements denied that there was any bakasht land
It was also denied that there was any mortgage of bakasht land
It was alleged that the lands were raiyati lands in possession of several tenants and therefore those lands could not be redeemed
The further defence was that the 1018 Ijara bonds were really sale deeds and therefore the appellant had no right of redemption in respect of the milkiyat interest
The respondents denied that the appellant tendered the mortgage money
The trial Court held that the appellant was entitled to a decree for redemption but not for mesne profit
The reason given was that the appellant did not deposit in court under Section 83 of the Transfer of Property Act the money due on mortgage
The mortgagees had from time to time paid the Government revenue and cess in respect of the mortgage property
The Government revenue and cess should have been paid by the mortgagor
The amounts representing the Government revenue and cess should have been added up in the mortgage money
The deposits in court did not cover those amounts
The appellant preferred appeals to the High Court
The High Court upheld the finding of the trial Court that certain lands were bakasht lands
The High Court set aside the finding of the trial Court as to other lands which were found by the trial Court not to be bakasht lands
The High Court upheld the finding and conclusion of the trial Court that there was no valid deposit in court of money due on mortgage
The appellant was therefore not entitled to mesne profits
The High Court found that the amount of revenue and cess was never less than the amount of haq ajri meaning thereby annual reserve rent  payable to
the mortgagor
The result was that the amount of revenue and cess paid by the mortgagees was always higher than the haq ajri and therefore there was no case of accounting
Counsel for the appellant contended that the appellant was entitled to mesne profits from the dates of deposit of mortgage money in court under section 83 of the Transfer of Property Act
The amounts were deposited in court of First Munsif Patna on 26 May 1947
Notice under section 83 of the Transfer of Property Act was served on the respondents on 30 May 1947 in two cases and on 3 June 1947 in the third case
The suits were filed for redemption of mortgage and mesne profits in the month of June 1950
The relevant terms of the ijara bond mortgage bond in favour of Ram Baran Singh were these  It is desired that the said Mustajir should enter into possession and occupation of the ijara property himself cultivate the land appropriate the produce thereof in lieu of interest on the peshgi money
I the executant or my heirs and representatives neither have nor 1019 shall have any claim for excess produce and mesne profits etc
against the said Mustajir or his heirs and representatives except to get a sum of Rs 12 rupees twelve in king s coins as annual reserve rent till this deed remain intact
Expenses over dispute regarding the milkiyat property and boundary limit and payment of Government revenue and road cess and Public works cess etc
are entirely the concern of me the executant
The said Mustajir neither has nor shall have any connection and concern therewith
The terms of the other two ijara deeds were identical
The only difference was that in the case of the ijara bond in favour of Inder Singh the annual reserve rent haq ajri was Rs 6 12 0 and in the case of Raj Kumar Mahto the annual reserve rent haq ajri was Rs 6 
Broadly stated these terms indicate three features
First the mortgagee shall have possession and occupation of the mortgaged property and appropriate the produce thereof in lieu of interest on the mortgage money and the mortgagor had no claim to any excess produce or mesne profits against the mortgage
Secondly the mortgagee was to pay to the mortgagor the amounts mentioned in each ijara bond the annual reserve rent or haq ajri
Thirdly the mortgagor was liable for payment of the Government revenue or cess
The High Court found that the mortgagees paid the revenue and cess out of haq ajri
In Title Suit No 54 of 1950 the High Court held that the total amount of revenue and cess came to Rs 15 9 3
The haq ajri in that suit was Rs 12 
It therefore followed that every year the mortgagee paid Rs 3 9 0 in excess of the amount haq ajri
The mortgagor was liable to the mortgagee for the excess payment
Similarly in Title Suit No 55 of 1950 the mortgagee paid revenue and cess amounting to Rs 9 13 3
The haq ajri under the ijara bond in that suit was Rs 6 12 0
The result was that every year the mortgagee paid Rs 3 1 3 in excess
The mortgagor was liable to the mortgagee to pay that excess amount
Again in Title Suit No 56 of 1950 the High Court found that the mortgagee paid every year revenue and cess amounting to Rs 7 12 0
The haq ajri there was Rs 6
The mortgagee therefore paid annually Rs 1 12 0 in excess of haq ajiri
The mortgagor was liable to pay the excess amount to the mortgagee
In the present appeals the mortgagor had undertaken the liability to pay the revenue and cess
The mortgagor failed to pay the same
The mortgagees paid the revenue and cess on be 1020 half of the mortgagor
The mortgagees were entitled to the excess payment of the amount of revenue and cess because the mortgagor was liable to pay the same
The mortgage bonds in the present case provided that as Ion as the mortgagee was in possession of the property the receipts from the mortgaged property shall be taken in lieu of interest on the principal money
That amounts to a stipulation that the receipts from the mortgaged property will be taken in lieu of the interest on the principal money
That is section 77 of the Transfer of Property Act
The provisions as to accounts contained in section 76g of the Transfer of Property Act are excluded in cases where section 77 of the Transfer of Property Act applies
Section 77 of the Transfer of Property Act applies to the present appeals
Further the mortgages had to pay to the mortgagor a fixed amount namely the haq ajri
There was nothing to account on the part of the mortgagees in relation to payment of haq ajri
On the contrary the mortgagor was liable for the payment of Government revenue and cess
Under section 76 c of the Transfer of Property Act the mortgagee in possession in the absence of a contract to the contrary must pay the Government revenue and other charges of a public nature and arrears of rent in default of payment of which the property may be summarily sold
In the present case the mortgagor was liable for payment of both revenue and cess
Therefore the mortgagees were entitled to add to the mortgage money the amount for which the mortgagor under the terms of the mortgage was liable
Section 4 of the Cess Act 1880 defines annual value of land  to mean the total rent which is payable or if no rent is actually payable would on a reasonable assessment be payable during the year by all the cultivating raiyats of such land in the actual use and occupation thereof
Section 5 of the Cess Act 1880 states that all immovable property to which the Act applies shall be liable to the payment of a local cess
Section 6 of the Cess Act 1880 provides as to how the cess is to be assessed
Section 38 of the Cess Act 1880 provides as to how rate of local cess  on the annual value of land is to be fixed
Section 98 of the Cess Act 1880 enacts that the amount which may become due under the provisions of the I Cess Act in respect of arrears of cess shall be deemed to be a public demand
Section 99 provides that the Collector may recover dues out of rent and the Collector s claim to have priority
These provisions show that cess is linked with rent
Cess is payable on annual value of land
Annual value is linked with rent
Cess is deemed to be a public demand
The mortgagee were entitled to add the amounts paid by them towards revenue and cess on the mortgage money
1021 The High Court was correct in refusing the mesne profits
On behalf of the respondents it was mentioned in their statement of case that the appellant after having deposited the further amount after the decree of the High Court had taken possession of the land
This statement was not challenged and denied by the appellant
This indicates that the appeals have now become academic
The appeals therefore fail and are dismissed
The respon dents will be entitled to one set of costs in this Court
VPS Appeals dismissed


Summary:
The appellant mortgagor tendered to the mortgagees the mortgage money due on their mortgages and on the refusal of the mortgagees to accept the amount deposited the mortgage money into court
The appellant thereafter filed suits for redemption and mesne profits
The terms of the mortgage deeds indicated that i the mortgagee shall have the possession and occupation of the mortgaged property and the right to appropriate the produce thereof in lieu of interest on the mortgage money and that the mortgagor shall have no claim to any excess produce or mesne profits ii the mortgagee was to pay to the mortgagor the amount mentioned in each mortgage bond as annual reserve rent and iii the mortgagor was liable for the payment of government revenue or cess
The mortgagees however paid the revenue and cess on behalf of the mortgagor
The total amount of revenue and cess paid by the mortgagees each year exceeded the amount due to the mortgagor as reserve rent
The trial court and the High Court in appeal held that the amounts representing the government revenue and cess should have been added to the mortgage money and deposited in court and since it was not done there was no valid deposit in court of the money due on the mortgages and hence the appellant was not entitled to mesne profits
Dismissing the appeal to this Court HELD  1 Under the provisions of the Cess Act 1880 cess is a public demand and linked with rent
Under the terms of the mortgage deed the appellant was liable for the payment of both revenue and cess
Since the mortgagees paid the government revenue or cess on behalf of the appellant and the amount so paid exceeded the amount payable by the mortgagees as reserve rent the mortgagees were entitled to the excess payment from the appellant and add it to the mortgage money due
1020E F H 2 There was nothing to account on the part of the mortgagees because a the mortgagees had to pay to the mortgagor a fixed amount as reserve rent and b the mortgages were covered by section 77 of the Transfer of Property Act and therefore the provisions as to accounts in section 76g are excluded
1020B D