Case: Sachdanand Prasad &amp; Others Vs. Babu Sheo Prasad Singh

1. 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.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 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 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.2. 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 19.88 1/2 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.3. 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 consistently defaulted in payment of the sum of Rs.119-1-3 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 in payment of the sum of Rs.86-9-3 payable by them annually on account of the total rent.4. The trial Court decreed the suit. The first appellate Court allowed 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 withdraw Rs.1,000/- deposited by the plaintiff in respect of the mortgage dated July 5, 1927. The High Court dismissed a second appeal preferred by the plaintiff. The plaintiffs now appeal to this Court by special leave.

Reasoning: 9. The first appellate Court, however, gave a decree for redemption of 3.93 acres of plot No. 955 in Hichapur village and gave liberty to the mortgagee to withdraw the entire sum of Rs.1,000/- 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 S. 60 of the Transfer of Property Act 1882, that they were entitled to redeem the aforesaid 8.93 acres of Union 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 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 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 3.93 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 S. 60 ofthe Transfer of Property Act, 1882 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 3.93 acres of land. The High Court affirmed the decree, and there is no cross-appeal by the defendant respondent. In the circumstances the decree passed by the Court below must be maintained.