KEWAL SURIHAR Vs. BIKAN SURIHAR

JUDGEMENT

(1.) This appeal is brought on behalf of the plaintiffs against a judgment of the Additional Subordinate Judge of Saran, dated 13th February, 1950, dismissing a suit for redemption. It appears that on 18th October, 1928, defendant No. 6 as guardian of Shib Narain, father of the plain-tiffs, executed a zarpeshgi deed in favour of defendant No. 1 with regard to 6 kathas 14 dhurs of land. Under the terms of the zarpeshgi bond the mortgagee was liable to pay the rent to the landlord. On 21st July, 1933, defendant No. 1 assigned his zarpeshgi interest in 4 kathas 18 dhurs out of the zarpeshgi land to defendant No. 5. It appears that the landlord brought a suit for arrears of rent against defendant No. 6 in 1932 and obtained a decree. In execution of that decree the landlord purchased the land in question on 18th September, 1933. It is also alleged that the landlord obtained delivery of possession in 1934. Four years later, that is, on 22nd August, 1938, defendant No. 1 obtained settlement from the land- lord of the land previously in zarpeshgi. The trial court held that the right of redemption was not extinguished by the execution sale and, therefore, granted the plaintiffs a decree for redemption of the usufructuary mortgage. On appeal the lower appellate court has held that by purchase of the land by the decree-holder in the execution case the mortgage came to an end and the right of redemption was extinguished. The lower appellate court, therefore, allowed the appeal and ordered that the suit should be dismissed.

(2.) The question involved in this second appeal is whether the right of redemption was extinguished when the execution sale took place and the landlord purchased the mortgaged land in the execution proceedings. It is important to say that both the courts below have, found that there was no fraud on the part of the mortgagees and there was no collusion between the landlord and the mortgagees and that the default of payment of rent on the part of the mortgagees was not a contrivance on their part to get rid of the equity of redemption or to obtain as advantage for themselves. The question arises whether in these circumstances the equity of redemption has been extinguished as a matter of law. On behalf of the plaintiff-appellants reference was made to two decisions of this Court, Deo Saran Singh v. Barhu Singh AIR 1952 Pat 286 (A) and Ram Rup Singh v. Jang Bahadur Singh AIR 1951 Pat 566 (B). Reference was also made on behalf of the appellants to a decision of the Supreme Court in Sidhakamal Nayan Ramanuj Das v. Bira Naik. AIR 1954 SC 336 (C). In our opinion all these cases are clearly distinguishable. In AIR 1952 Pat 286 (A) there was a default of payment of rent by the mortgagee and the purchase in the execution proceeding was made by the mortgagee himself. Similarly in AIR 1954 SC 336 (C) the purchase was made by the mortgagee in possession and therefore it was held that the provisions of section 90 of the Trusts Act applied and that the equity of redemption was not extinguished and the mortgagee held the land as a trustee for the mortgagor, In the third case, AIR 1951 Pat 568 (B) there was a purchase of the mortgaged land by the landlord in the execution proceedings, but the distinguishing feature is that in that case there was a a finding that the mortgagee was guilty of fraud and collusion in making default in payment of rent decree and taking fresh settlement of the holding. It was held in these circumstances that the mortgagee was clearly in the wrong in allowing the property to be sold in execution of the rent decree, and by taking settlement from the landlord he could not take advantage of his own wrong and change the character of his possession and deprive the mortgagor of his right of redemption: it is manifest that the material facts of the present case are wholly different and there is no finding that there was any fraud or collusion between the mortgagee and the landlord. We are, clearly, of the opinion that the present case falls within the principle laid down by this Court in Fekua Mahto v. Lal Sahu ILR 18 Pat 133: (AIR 1989 Fat 382) (D). In that case property subject to a mortgage was sold in execution of a rent decree because there was default on the part of the mortgagee to pay rent. The property was sold to the land-lord in the execution proceedings, but about fifteen years later the property was sold to the mortgagees. It was held, in these circumstances, that the purchase by the mortgagee did not, in the absence of fraud, revive the equity of redemption which had been extinguished by the rent sale. In our opinion, the principle of this decision fully applies to the facts of the present case and it must be held that the equity of redemption in property in dispute was extinguished on 18th September, 1953, when the sale took place in the execution proceedings. It must also be held that the equity of redemption was not revived on 22nd of August, 1938, when defendant No. 11 took settlement of properly from the landlord. The reason is that section 90 of the Trusts Act does not apply to the present case. Section 90 is in the following terms:"90, Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interesed in the property, or where any such owner, as representing all persons interested in such property gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage". During the course of argument of this appeal it was contended on behalf the respondents that there was no duty on the part of defendant No. 1 to pay the amount of rent. It was suggested that there was an assignment on 21st, July, 1933, by defendant No. 1 of 4 kathas 14 dhurs of land in favour of defendant No. 5 and there was liability on the part of defendant No. 5 to pay rent. It was also contended that there was no mention in the deed of assignment about the liability for payment of rent, and under Section 76 (c) of the Transfer of Property Act the defendant No. 5 was liable to pay the rent so far as his share of the property is concerned. It is not necessary for us to go into this question in this appeal. Even assuming in favour of the appellants that there was liability on the part of defendant No. 1 to pay the entire amount of decretal dues, it does not necessarily follow that the provisions of Section 90 of the Trusts Act are applicable. It has been found by the lower courts that there was no collusion between the landlord and the mortgagee and therefore there was no causal connection between the default of defendant No. 1 to pay the rent and save the property from sale on 18th September, 1933, and the settlement obtained by him from the landlord on 22nd August, 1938. In the absence of such causal connection, it cannot be Mud that defendant No. 1, the mortgagee had "by availing himself of his position as such, gained an advantage in derogation of the rights of the other persons interested in the property" within the meaning of section 90 of the Trusts Act. It follows, therefore, that the equity of redemption has been extinguished in this case and the lower appellate court was right in holding that the suit of the plaintiffs must fail.

(3.) In view of these considerations we think that there is no merit in this appeal and we accordingly dismiss it with costs.