BALESHWAR MANDAL Vs. UCHIT LAL JHA

JUDGEMENT

(1.) The defendants second party in a suit for redemption of a usufructuary mortgage executed by plaintiff No. 1 in favour of the grandfather of defendant No. 1 are the appellants. The mortgage was executed on the 2nd February, 1933, with a condition that the mortgagee was liable to pay the rent to the landlord amounting to Rs. 13.00 and odd a year. On account of default in payment of rent, the entire holding including the mortgaged security was brought to sale in execution of a rent decree and purchased by the father of defendants 1 and 2 in 1939. Thereafter, the auction purchaser sold the property to the father of defendant No. 5. The plaintiffs claimed that they were entitled to redeem that mortgage in spite of the auction purchase in the rent sale. The Courts below have relied upon the principle of equity in Section 90 of the Trusts Act to decree the suit in favour of the plaintiffs.

(2.) The defence on behalf of the defendants second party was that there was no liability on the mortgagee to pay the rent, and, therefore, the sale of the mortgaged security and other properties for default of payment of rent cannot be attributed to any contributory default on the part of the mortgagee. The mortgagee auction purchaser in the rent sale derived independent title and by purchasing the same from him the defendants second party also acquired a good title.

(3.) The suit having been decreed by both the courts below, the transferees-defendants second party have come up in appeal.