BUDHANI KUER Vs. RAM ISHWAR SINGH

JUDGEMENT

(1.) This second appeal by defendants except one (who is respondent No. 3 in this appeal) arises out of a suit for redemption of an usufructuary mortgage dated 24th of May, 1923, executed by Khubi Gope and Teja Gope in favour of original defendant No. 1 (since dead--whose heirs have been substituted in his place and are appellants before this Court) for Rs. 400/-. The properties mortgaged were plot Nos. 3839 and 3852 of khata Nos. 592 and 328 respectively of village Nagarnausa of the district of Patna (now Nalanda). Plot, No. 3839 measures 1.13 acres and plot No. 3852 measures .75 acre. Plaintiff? (respondents Nos. 1 and 2 in this appeal hereinafter referred to as 'the respondents') are descendants of the mortgagors is not in dispute in this appeal. Their simple case was that the mortgage was still subsisting, they tendered the mortgage money to the mortgagee but he refused to receive the same they then deposited the money in court, under Section 83 of the Transfer of Property Act, a notice of the deposit was duly served on the mortgagee and as in spite of service of notice he did not part Possession of the mortgaged Properties, the suit had to be instituted.

(2.) The defence case was that the landlord had filed a rent suit against the sons of the mortgagor Teja Gope and obtained a decree. Plot No. 3839 was auction sold and Purchased by the landlord-decree-holder in execution of the said decree. As a result of the sale, the mortgagors' right to redeem was extinguished. After the decree-holder-auction purchaser took delivery of possession over the plot, the mortgagee--original defendant No. 1 filed an application, under Order 21, Rule 100 of the Code of Civil Procedure. That application was allowed and plot No. 3839 was released and out, back in possession of the mortgagee. Then he brought Miscellaneous Case No. 486 of 1945 for recovery of price of the produce of that plot for the period the decree-holder-auction purchaser had remained in unlawful possession. A decree was passed in that case as well. Execution of that decree was levied in execution case No. 1212 of 1944. The mortgagee-decree-holder auction purchased the interest of the landlord that is equity of redemption, in Plot No. 3839 in the said execution case and took delivery of possession over the same on 4th of March, 1947. Thus, according to defence case, the mortgage in respect of plot No. 3839 could no longer be redeemed. It was averred that the mortgagee used to pay the rental of the mortgaged plots to the mortgagors and decree and sale in favour of the landlord were due to failure on the part of the mortgagors to pay the rent. So far plot No. 3852 is concerned, the defence case was that on receipt of the notice of deposit, the mortgagee vacated possession over that plot and the respondents came in possession of it and, therefore, it was claimed that proportionate amount of the mortgage money deposited in court should be paid to the mortgagee. Want of cause of action, defect of parties and limitation were also pleaded Right of the respondents for mesne profits was denied.

(3.) The trial court disbelieved the case of the appellants that the mortgagee used to Pay rent to the mortgagors and was not In default. It recorded no finding of fraud or collusion between the landlord and the mortgagee but held that as the mortgagee was also defaulter and equity of redemption in plot No. 3839 was sold on that account, after he purchased it he became a trustee on behalf of the mortgagors of that plot. It accordingly decreed the suit directing the appellants to deposit in court the original Rehan bond and all other documents connected with it and to make over possession of the mortgaged lands to the respondents within 90 days of the court's order. The lower appellate court affirmed these findings of the trial court and dismissed the appeal of the appellants.