SHRIPAD LAXMAN NAKADI Vs. KASHIBAI DINKAR JOG

JUDGEMENT

(1.) The only question in this appeal is whether the holder of a mortgage decree is entitled to have his decree satisfied by the sale of an accession made to the mortgaged property after the passing of the decree. It arises in this way. In 1887 one Mahadeo Vithoba Nakadi, along with his brother Venkoba as his surety, mortgaged his shop, Municipal Survey No. 915 in Belgaum, to one Umabai, and on October 28, 1910, an award decree was passed, which declared that Rs. 2,700 were due to Umabai and provided that the amount should be paid by annual instalments of Rs. 150, and that in default of payment of two consecutive instalments the mortgagee should recover the amount due to her by sale of the shop and also from the person and property of the mortgagor's son Laxman,-the original mortgagor having died in the meantime. The mortgaged shop was destroyed by fire in 1921 and another shop building was constructed in its place. Umabai having died, her heirs presented a darkhast in 1934 to recover the arrears of the instalments which were still in time, by sale of the new shop building. Laxman's sons were also impleaded in the darkhast and they contended that the new shop had been constructed by them and that Laxman had no interest in it. But that contention was disallowed and is not now pressed. The main ground on which Laxman registered the darkhast was that the shop which was built after the award decree was passed was not the property mortgaged and as the mortgage had become merged in the decree, the new shop could not be treated as an accession to the mortgaged property, to which the mortgagee became entitled for the purpose of the security under Section 70 of the Transfer of Property Act, 1882, The executing Court upheld the contention and ordered the sale of only the mortgaged site below the newly constructed shop. In appeal the learned District Judge took a different view and ordered the sale of the shop building also, and Laxman has now appealed against that order.

(2.) Section 70 of the Transfer of Property Act provides that if, after the date of a mortgage, any accession is made to the mortgaged property, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to such accession. Illustration (b) to that section says: A mortgages a certain plot of building land to B and afterwards erects a house on the plot. For the purposes of his security B is entitled to the house as well as the plot.

(3.) What was mortgaged by Mahadeo was the shop with the site on which it was standing and on the principle of the maxim quidquid plantatur solo solo cedit (whatever is attached to the earth becomes part of it) any building constructed on the mortgaged plot becomes a part of that plot and an accession to it. But Mr. Gajendragadkar contends for the appellant that although the new shop building may be deemed to be an accession to the mortgaged property, it was constructed after the mortgage was extinguished by being merged in the award decree and hence the decree-holder cannot claim the benefit of Section 70 of the Transfer of Property Act. He relies upon the rulings in Mysore Kapiniah Shivananjih V/s. K. Sithay Goudar [1921] A.I.R. Mad. 627 and Haradhan Chakerverty V/s. Haragobind Dutta [1921] A.I.R. Pat. 188., on which the judgment of the executing Court is based. The facts in Shivananjih's case can be easily distinguished; There the acquisitions which were-claimed as an accession to the mortgaged property were made not only after the mortgage decree was passed, but after the mortgaged property had been sold in execution of the decree. At that time the decree-holder had ceased to be a mortgagee and it cannot be disputed that the benefit of Section 70 is available only to the "mortgagee." Spencer J.; however, observed that Secs.63 and 70 of the Transfer of Property Act must be read together as both of them involved the principle of Roman law that accessions go with the principal and applied it to mortgaged property. Section 63 says that where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, received any accession, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled as against the mortgagee to such accession. For the application of the principle of this section accession to mortgaged property must be received "during the continuance of the mortgage" and Spencer J. says that under Section 70 also it must be the same and that although the words of that section only make it necessary that the accession should be "after the date of the mortgage," it must also be understood that it must be before the mortgage becomes extinguished. But the omission of these last words in Section 70 must have been deliberate. The mortgagor is the owner : of property mortgaged and as such naturally entitled to the accession to his own property, whereas the mortgagee holds it only by way of security. It need not, however, be disputed that the mortgagee can claim the benefit of Section 70 only if the accession to the mortgaged property is during the subsistence of the mortgage, because under that section only "the mortgagee" is entitled to its benefit and he ceases to be a mortgagee as soon as the mortgage is extinguished. So the question is whether a mortgage becomes extinguished as soon as a decree is passed on it.