ABHURAM SIL Vs. HARA CHAND DAS

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for redemption of a mortgage by way of conditional sale. The mortgage was granted on the 14th October 1889 by the predecessor-in- interest of the plaintiffs to a lady named Anandamoyee, now represented by the defendants. The mortgagee entered into possession under the terms of the contract, which entitles her to apply the profits partly in payment of the dues of the superior landlord and partly in satisfaction of the interest on the mortgage. The mortgage-deed fiarther provided that the mortgagor would be entitled to redeem the security on payment of the principal sum of Rs. 65 at any time. The present suit was commenced on the 25th June 1910. The defendants have successfully resisted, the claim of the plaintiffs, on the ground that the mortgagor had no right in the property mortgaged by her. In our opinion, it was not competent to the defendants to urge that the mortgagor had no title to the property given by wayof security, and the view taken by the Courts below is erroneous.

(2.) There is no room for controversy that a mortgagee cannot be permitted to resist a claim for redemption on the ground that the mortgagor had no title to the property included in the mortgage. Cottenham, L.C., enunciated this principle in Tasker v. Small 3 Myl. and Cr. 63 at p. 70 : 45 R.R. 212 : 5 L.J. Ch. (N.S.) 321 : 6 Sim. 625 : 40 E.R. 848 in these terms: "A mortgagee can never refuse to restore to his mortgagor, or those who claim under him, upon repayment of what is due upon the mortgage, the estate which became vested in him as mortgagee. To him it is immaterial, upon repayment of the money, whether the mortgagor s title was, good or bad. He is not at liberty to dispute it, any more than a tenant is at liberty to dispute his landlord s title". The Lord Chancellor reiterated the same principle in Wroe v. Clayton 9 L.J. Ch. 107 affirm-ing the decision in Wroe v. Clayton 8 L.J. Ch. 356 : 9 L.J. Ch. 107 : 4 Jur. 82: The mortgagee after admitting the title of the mortgagor, by taking the mortgage, was precluded from raising any objection to the mortgagor s right of redemption on the ground that his title was defective," Roberts v. Clayton 3 Anst. 715 : 145 E.R. 1016. The principle has been applied in this country in the case of Mahomed Abdool Ruzzak v. Sadik Ali 3 Agra H.C.R. 142. It cannot be disputed, however, that the mortgagee may establish that the title of the mortgagor has expired since the creation of the mortgage, in other words, that the equity of redemption is no longer vested in him so as to entitle him to redeem the mortgage. This is illustrated by the cases of Nakchedi Bhagat v. Nakchedi Misr 18 A. 329 : A.W.N. (1896) 90 and Ammu v. Rama-kishna 2 M. 226. Consequently in the case before us, it was not open to the representatives of the mortgagee to prove that the mortgagor had lost all right to the holding, the subject-matter of the mortgage transaction, by abandonment before the mortgage was granted. It has been found that on the 11th June 1877 a kabulyat was executed, on behalf of the mortgagor and her co-sharers, by Rameswar in favour of the superior landlord, and that after Rameswar had left the village, the landlord made a settlement with Durga Charan on the 22nd June 1883. It is plain that Durga Charan has disappeared from the scene, but under what circumstances, has not been explained in this case. The fact is incontestable that on the 14th October 1889, when the mortgage in suit was executed, the mortgagor was in possession and transferred possession of the mortgaged property to her mortgagee. It is consequently not open to the mortgagee to prove that at the commencement of the mortgage transaction under which she obtained possession of the premises, the mortgagor had no title to the property, though it is open to her to show that the title of the mortgagor has terminated since the creation of the mortgage. This has not been established. All that has been proved is that on the 4th May 1895 the mortgagee, while in possession as mortgagee, attorned to the superior landlord in derogation of the rights of her mortgagor. This clearly cannot, on the principle explained in Rakestraw v. Brewer 2 P. Wms. 511 : Sel Ch. Ca. 58 : Mosely 189 : 2 Eq. Ca. Ab. 162 : 24 E.R. 839, affect the title of the mortgagor as between the mortgagor and mortgagee. We are not here concerned with the rights of the landlord who is not a party to this litigation, but as between the mortgagor and mortgagee, it is plain that the attornment by the latter to the superior landlord cannot, in any way, prejudice the rights of the former.

(3.) The result is that this appeal is allowed, the decree of the Court below set aside and the suit decreed with costs in all the Courts. A redemption decree will be drawn up in accordance with Rule 7 of Order XXXIV of the Code of Civil Procedure and the plaintiffs will be allowed three months from the date when the decree is actually drawn up to deposit in this Court the amount due.