GUNNAM DORAYYA Vs. VADAPALLI AYYAMA CHARYULU

JUDGEMENT

(1.) The second mortgagee is the plaintiff (appellant); and he seeks to redeem the 1st mortgagee, the 2nd defendant. The 2ml defendant, has succeeded in the lower appellate Court on the following conclusions: (a) that 60 and odd rupees of the principal sum of Rs. 200 (the 1st mortgage amount) was still due to the 2nd defendant on date of suit; and (b) that under the terms of the first mortgage, the 2nd defendant was entitled to hold possession of the lands till that 60 and odd rupees was also wiped out by the usufruct.

(2.) The contention of the plaintiff in second appeal is (a) that as the 60 and odd rupees represent irrigation cesses and other cesses due upon other lands of the mortgagor (contained in the same pattah as the mortgaged land) and not cesses due on the mortgaged land (No. 183) itself, the 2nd defendant was not entitled to add that sum to the principal of the mortgage amount and cannot claim a right to remain in possession till that sum of Rs. 60 and odd is also discharged out of the usufruct; (b) that even if the irrigation and other cesses are treated as due upon the mortgaged land (No. 183) also, Section 42 of Act. II of 1864 under which sales held for arrears of land revenue are free of prior incumbrances does not apply to sales held for recovery of irrigation cesses, etc., and hence the mortgagee was not bound to pay them under Section 72(b) of the Transfer of Property Act (which requires a mortgagee to spend money for the preservation of the mortgaged property from forfeiture of sale and empowers him to add that sum to the principal money, and (c) that even if contention (b) is wrong, the 2nd mortgagee is entitled to redeem the first mortgagee on payment of the said sum of Rs. 60 and odd notwithstanding that the first mortgage deed fixes no definite term for the redemption of the mortgage and provides for the mortgagee remaining in possession of the land till the principal sum with interest is satisfied out of the net usufruct after paying assessments, etc.

(3.) As regards the first contention, the case of The Secretary of State for India in Council v. Pisipathi Sanharayya (1910) I.L.R. 34 M.493 : S.C. 20 M.L.J. 798 is clear authority that, though for the sake of convenience separate amounts are entered as the revenue due upon separate numbers held under a single pattah, the demand of the sircar and the liability of the landholder is a consolidated demand and the liability for the entire sum mentioned in the pattah charged upon every land is contained in the revenue pattah and that, "we must construe Section 2 as declaring all the land of a landholder to be security for all the land revenue payable by him". It follows that the Government revenue due upon other lands contained in the same pattah issued in the mortgagor s name is revenue due upon the mortgaged land also.