Case: Thakur Singh Vs. Ram Baran Singh &amp; Ors

said Mustajir or his heirs and representatives, except to get a sum of Rs. 12/- (rupees twelve) in kings 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/- and in the case of Raj Kumar Mahto the annual reserve rent (haq-ajri) was Rs. 6/-." 9. 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. 10. 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 mortgage paid Rs. 3-9-0 in excess of the amount of 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 Rupees 7-12-0. The haq-ajri there was Rupees 6/-. The mortgagee therefore paid annually Rs. 1-12-0 in excess of haq-ajri. The mortgagor was liable to pay the excess amount to the mortgagee. 11. 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 behalf 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. 12. The mortgage bonds in the present case provided that as long 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 amount to a stipulation that the receipts from the mortgaged property will be taken in lieu of the interest on the principal money. That is S. 77 of the Transfer of Property Act. The provisions as to accounts contained in Section 76 (g) 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 mortgagees 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. 13. 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 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 Collectors 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 mortgagees were entitled to add the amounts paid by them towards revenue and cess on the mortgage money. 14. The High Court was correct in refusing the mesne profits. 15. 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. 16.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. The mortgage bonds in the present case provided that as long 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 amount to a stipulation that the receipts from the mortgaged property will be taken in lieu of the interest on the principal money. That is S. 77 of the Transfer of Property Act. The provisions as to accounts contained in Section 76 (g) 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 mortgagees 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 cess13. 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 liableSection 4 ofthe 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 ofthe 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 ofthe Cess Act, 1880 provides as to how the cess is to be assessed. Section 38 ofthe Cess Act, 1880 provides as to how rate of local cess on the annual value of land is to be fixed. Section 98 ofthe Cess Act, 1880 enacts that the amount which may become due under the provisions of the 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 Collectors 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 mortgagees were entitled to add the amounts paid by them towards revenue and cess on the mortgage money14. The High Court was correct in refusing the mesne profits.