KUNJULAKSHMI AMMA Vs. PADMANABHA PILLAI

JUDGEMENT

(1.) NO error of law. By reason of the gift in her favour in 1108 (1932-33 A. D.) by the mortgagee, her mother, the appellant 1st defendant became the mortgagee in possession, all that the mother reserved for herself being the right to take the profits during her life-time. The gift deed it may be noted required her (the 1st defendant) to pay the taxes. The revenue sale in 1112 (1936-37 A. D.) for arrears of tax was for her default, and even if the original purchaser in the revenue sale was, as is claimed, a complete stranger and not, as is often the case in such cases, a benamidar, there can be no doubt that when the appellant purchased the property from the auction purchaser she obtained an advantage directly traceable to her own default as a mortgagee and the case, it seems to me, falls within S. 90 of her Trusts Act. The principle underlying S. 65 can also be invoked-see Sangapally Lakshmayya v. Intoory Bolla Reddy (ILR. XXVI Madras 385) following Nawab Sidhee Nuzur Ally khan v. Raja Ojoodyaram Khan 10 M. I. A. 540) If the mortgagee himself purchases the property in the revenue sale it is beyond doubt that he obtains the advantage by availing himself of his position as a mortgagee, what he does in that position being to commit default in the payment of tax thus causing the property to be brought to sale, and the position is not altered because there is an intermediate purchase by a third party whether a benamidar or not. The advantage gained of becoming the owner of the property, is there and that is gained, as much as in the case of a direct purchase, by the mortgagee availing himself of his position as a mortgagee to commit default in the payment of tax. It is not an essential element that the default should be with the pre-conceived object of buying the property in the revenue sale, even though that element is present in Illustration (3) to S. 90.

(2.) IT is contended that the disposition in the so-called gift deed is really testamentary. I find no way of reading the deed in that way.

(3.) LEAVE refused.