JAY PROSAD CHOUBEY Vs. JASODA

JUDGEMENT

(1.) These two appeals arise out of two redemption suits. The parties are different, but with their consent they have been heard together as a common question of law arises in both the cases. This-judgment will govern them both.

(2.) The facts leading to the institution of the suit of which S. A. 1384 of 1950 arises are these : Plaintiff No. 1 executed two usufructuary mortgage bonds in favour of defendant No. 1, Jairam Tewari, who died during the pendency of the suit and was substituted by his widow. One bond was for Rs. 600 and the other for Rs. 200. According to the case of the plaintiffs, a sum of Rs. 304 out of the above mortgage money was left with the mortgagee for payment of arrears of rent for the lands given in usufructuary mortgages for the year 1341 fasli, that is, prior to the execution of the usufructuary mortgage bonds. It appears that the arrears of rent for the year 1341 fasli were not paid, and the landlords obtained a decree for rent for that year. In execution of that decree, the mortgaged lands were sold on 3rd of December, 1935, and were purchased by the defendants second party who have been found by both the Courts below to be the benamidars of the mortgagee. The plaintiffs wanted to redeem the two mortgages in-Baisakh, 1351 fasli, but the mortgagee refused to accept the money and asserted that the lands had been sold in execution of a decree for rent. The plaintiffs thereafter instituted a suit for redemption, being title suit No. 111 of 1944, in the Court of the Munsif at Banka. The suit was contested on various grounds, but the pleas which are relevant for the purpose of the present appeal were (1) that the sum of Rs. 304 was never deposited with them for payment of arrears of rent for the year 1341 fasli and the liability to pay the same was on the mortgagors and (2) that by sale of the mortgaged property in execution of a decree for rent the right of redemption has been extinguished. The trial Court held that the story put forward by the plaintiffs as regards the deposit of the sum of Rs. 304 with the mortgagee was not correct and the mortgagee himself purchased the lands in execution of a decree for arrears of rent for the year 1341 fasli. It may be noted that the lands in mortgage appertain to khata Nos. 3, 4, 12, 13 and 51. The trial Court held that the sale of 4.82 acres of khata No. 3 and the entire land of khata No. 51 was fraudulent and the plaintiffs' right of redemption subsisted so far as those lands were concerned. It, however, held that the sale of the remaining area of khata No. 3, namely, 20.88 acres and the entire area of khata Nos. 4, 12 and 13 was not fraudulent and the right of redemption has been extinguished. It may also be noted that the share of the plaintiffs in khata No. 3 was four annas and in khata No. 51, eight annas. The trial Court, therefore decreed their suit for redemption of their shares in 4.82 acres of khata No. 3 and of the lands appertaining to khata No. 51 on payment of the entire mortgage money due under the two bonds, namely, a sum of Rs. 800. With respect to the rest of the mortgaged lands, the suit for redemption was dismissed. The plaintiffs preferred an appeal in the lower appellate Court against the dismissal of their suit for the rest of the lands and the defendants filed a cross-objection with respect to the lands for which a decree for redemption had been passed. The lower appellate Court affirmed the findings of the trial Court on all the points and dismissed both the appeal and the cross-objection. Being, thus, aggrieved, the plaintiffs have preferred the present appeal in this Court and the defendants have filed a cross-objection. The cross-objection has, however, not been pressed and it is, accordingly, dismissed.

(3.) The facts giving rise to S. A. 919 of 1954 are as follows : Plaintiff No. 1 and his brothers, whose heirs and legal representatives are plaintiffs 2 to 6, executed a usufructuary mort-gage bond on 5-7-1927 with respect to 7.20 acres of Jand in village Hichhapore for a sum of Rs. 1000 in favour of the defendants. On 15-4-1928, they executed another usufructuary mortgage bond in favour of the defendants with respect to 7.5 acres of lands in village Utrain for Rs. 1300. The lands appertaining to village Hicchapore were under the zamindari of the Tikari Raj and the lands appertaining to Utrain were under the khas Mahal. The holdings of the plaintiffs in both the villages consisted, besides the lands given in usufructuary mortgagees, of some more lands and the stipulation was that the mortgagees will pay the rent for the mortgaged lands and the mortgagors will pay rent for the lands which were outside the mortgages. It appears that there was default in the payment of rent as a result of which the Tikari Raj got the holding sold in execution of a decree for rent and that was purchased by one Dwarka Lal on 18-6-1934 who obtained delivery of possession on 19-1-1936. The judgment debtors filed an application under Order 21, Rule 90 of the Code of Civil Procedure for setting aside the above sale, and in that proceeding the parties filed a petition for compromise under which the judgment-debtors undertook to pay the decretal amount with compensation money to the auction purchaser by a certain date and it was stipulated that on such payment being made, the sale shall stand set aside. It was further stipulated that on failure of such payment being made on the date fixed, the sale shall stand confirmed. No payment, however, was made as stipulated above and the sale stood confirmed. Similarly, the khas mahal started a certificate proceeding on account of failure of payment of rent and the holding of the plaintiffs in village Utrain was sold in a certificate sale and purchased by the mortgagee-defendants themselves in the name of their servant Deokaran Singh on 22-1-1934. The judgment-debtors again made an application under Section 29 of the Public Demands Recovery Act for setting aside the sale. There also they were allowed time to pay the dues but they did not pay and the sale was confirmed on 20-7-1934. The auction purchaser took delivery of possession on 15-8-1934. Thereafter the defendants took a sale deed from Dwarkalal the auction purchaser of Hichhapore lands and a deed of release from Deokaran Singh with regard to Utrain lands. The case of the plaintiffs is that in 1950 they offered to redeem the two usufructuary mortgage bonds and on refusal of the mortgagees to accept the money, they deposited the same in Court under Section 83 of the Transfer of Property Act. They thereafter instituted the present suit for redemption of the two mortgages being) mortgage suit No. 91 of 1951 in the Court of the Munsif, 1st Court, Gaya. The suit was contested by the mortgagee-defendants on various grounds, but the ground with which we are concerned in this appeal was that in view of the sale for arrears of rent due to default of the plaintiffs, their right to redemption was lost. The trial Court overruled the plea taken in defence and held that the equity of redemption was not lost and decreed the suit. The defendants, thereafter, preferred an appeal in the lower appellate Court. That Court, however, held that the mortgaged security along with the rest of the holdings was sold in auction for default of payment of rent by the mortgagors with respect to the portions of the lands not covered by the mortgage bonds and that the sales were not brought about by the mortgagees on account of their default or collusion with the landlords for the ulterior motive of depriving the mortgagors of the mortgaged property. It was also held that the mortgagees made all attempts to save the mortgaged property even after having paid the entire rent and the mortgagors had full knowledge of the same and defaulted in payment of the arrears even after the compromise and the time allowed for payment of the decretal dues. Accordingly, it held that the purchase made by the mortgagee-defendants extinguished the equity of redemption and the same did not enure for the benefit of the mortgagors. It appears that out of the lands given in mortgage for a sum of Rs. 1000 referred to above, plot No. 955 had an area of 4.33 acres. Out of this plot only 3.93 acres were given in mortgage and the rest of the lands, namely, .40 acres remained in possession of the mortgagors. By sale in execution of the decree for rent only .33 acres out or this plot was sold and that area was found to have been sold out of the area of this plot left in possession of the mortgagors. Therefore, the entire area given in mortgage, namely 3.93 acres out of this plot continued to remain in possession of the mortgagees as being mortgaged property. The lower appellate Court, therefore, allowed the redemption of this area and decreed the suit to that extent entitling the mortgagees to withdraw the entire sum of Rs. 1000 deposited with respect to this usufructuary mortgage. With respect to the rest of the lands given in usufructuary mortgage the suit was dismissed. Being, thus aggrieved, the plaintiffs have presented this second appeal in this Court.