GAURI SHANKER SAHU Vs. SHEOTAHAL GIR

JUDGEMENT

(1.) This case, in my judgment, which is an appeal by the defendant in an action for redemption, depends entirely upon the circumstances surrounding and the effect of sale in execution of a rent decree of 1911. The case depends also upon whether Gauri Shanker was joint with one Ramji, who was defendant No. 2 in the action and was the son of the original mortgagee, Gauri Shanker in that sense being the mortgagee. The purchase by Gauri Shanker took place on March 5, 1914, and it was a purchase from the landlord who himself had purchased the holding in the rent sale in the action which he had brought and to which I have already referred. There is a finding by the Courts below that Kishun Sah who was the uncle of Ram Khelawan was benamidar of Gauri Shanker.

(2.) Now as the plaintiff, who sought to redeem in this suit, purchased from the original mortgagor, the tenant of the holding, on June 3, 1929, the case, as will be seen depends upon whether the equity of redemption at the time that it was sold to the plaintiff in 1929 was still subsisting. We have listened to the elaborate arguments of the learned Advocate on behalf of the respondent as also of Dr. P. K. Sen, who appears for the appellant defendant; but, in my judgment, the case depends upon a very short point to which I referred in the commencement of my observations.

(3.) There were two authorities relied upon by the learned Advocate on behalf of the respondent: one was in the decision of their Lordships of the Judicial Committee of the Privy Council in Nawab Sidhee Nuzur Ally Khan V/s. Rajah Ojoodhyaram Khan 10 MIA 540 : 1 Ind. Jur. (N.S.) 185 : 2 Sar 133 (PC). That case was relied upon more particularly for an observation of their Lordships to the effect that a person could not benefit from his own wrong; but when the opinion of their Lordships of the Judicial Committee which was stated by Sir Edward V. Williams is examined, it will be seen that that case has no application to the facts of the case which is before us. In this connection I should observe that the judgment of the learned Judge in the Court below depends, as I have already stated, upon the finding that Gauri Shanker was joint with defendant No. 2 who was the son of the original mortgagee, and in that sense and in that sense only, was he the mortgagee, a fact which is to be found in a statement made by the learned Judge towards the end of his judgment and it is this: I, therefore, hold that the zarpzshgidars having purchased the zarpeshgi property in execution of a rent sale brought about by their own default the sale did not deprive the mortgagor, defendant No. 5 of his equity of redemption. As defendant No. 5 has sold the same to the plaintiffs the plaintiffs have the right to redeem.