KRISHNA BHATTA AND OTHERS Vs. PAMMAKKE AND OTHERS

JUDGEMENT

(1.) THE short point that arises for consideration in this Second Appeal is as to whether the plaintiffs are entitled to redeem the usufructuary mortgage, Ext. A1 including the Kumki properties described in schedule B of the plaint. The trial court upheld the plea of the plaintiffs, but the appellate court has declared their right to redeem only the admitted mortgaged properties mentioned in schedule A of the plaint and disallowed their claim to treat the B schedule properties as accretions to the mortgaged properties. In my view, the reasoning of the lower appellate court cannot be sustained. As stated by the trial court, even the second defendant has stated in chief examination that B schedule properties namely Kumki lands were obtained on Darkhast and that Exts. B4 to B7 are assessment receipts. The mortgage, Ext. A1, itself makes the reference to Kumki lands also as included in the mortgage. That there were Kumki lands adjoining the mortgaged properties was not disputed before the trial court. Therefore, when the usufructuary mortgagee, who is already in possession as usufructuary mortgagee of Kumki lands gets the adjoining Kumki lands on Darkhast utilising his position as a mortgagee, the law is clear that the mortgagor is entitled to treat the said acquisition as an accretion and as part of the mortgaged property. In this view, the trial court held that the B schedule properties are Kumki to the mortgaged properties and section 63 of the Transfer of Property Act will entitle the mortgagor to treat the B schedule properties also as an accession or accretion to the mortgage.

(2.) BUT the learned District Judge, in considering this aspect, has not really adverted to the material circumstances relied upon by the trial court. It has only considered the extent of the Kumki lands already included in the mortgage and the extent of the Kumki lands further acquired on Darkhast by the mortgagee. The learned Judge appears to have taken the view that there is no record to show that the grant to the usufructuary mortgagee of the B schedule lands was as representing the mortgagor. This statement of the learned District Judge makes it quite clear that he has not really kept in view the correct legal principles applicable to such cases. The question is not whether the mortgagee got the Kumki lands as representing or on behalf of the mortgagor; but the real question is whether as mortgagee, and utilising his position as mortgagee he got the Kumki lands from the Government.

(3.) THE result will be that the accretion goes to the benefit of the mortgaged property, in turn, going to the benefit of the mortgagor. The decree and judgment of the lower appellate court are set aside and those of the trial court restored with costs in the lower appellate court and in the trial court. As nobody has appeared for the respondents in this court, there will be no order as to costs in the Second Appeal. No leave.