ABDUL REHMAN IBRAHIM Vs. VINAYAK JAYAVANTRAO DESHMUKH

JUDGEMENT

(1.) This is one of those unfortunate suits where the period of limitation allowed by the Indian Limitation Act is sixty years and where the litigation is started many years after the date of the material facts. The point before us is as to the effect of a revenue sale of land made so long ago as 1884. At that date there was a mortgage on the land, the mortgagee being in possession. The assessment which had been raised during the course of a few years from Rs. 22-8 to Rs. 149-8 had fallen into arrear. Accordingly under Section 56 of the then Land Revenue Code the land was forfeited by Government, and then sold. It so happens that the purchaser at that sale is alleged to be merely a benamidar for the mortgagee. Let that be so. In fact the mortgagor never did anything. In course of time he died, and I suppose his sons also. And now we have a young grandson aged twenty-one who, with the aid of a pleader's clerk, has started this litigation. We are accordingly asked to hold some thirty-five years after the event that this sale was a deliberate device by the mortgagee to obtain the equity of redemption; that having money in his hands, to wit the rents and profits of the land, he deliberately failed to pay the assessment with this fraudulent object; and that consequently, there is an equity in Shamrao the mortgagor which still survives to his grandson the plaintiff; and that as a mortgage is only barred after sixty years, the plaintiff's suit is still within time.

(2.) In the first place, there was here a forfeiture by Government for nonpayment of the assessment. That is clear on the evidence produced from the records. It is also clear that there was a sale by Government following on that forfeiture. Stopping there, I would hold that under Section 56 of the then Bombay Land Revenue Code, it is clear that the property would pass to the purchaser free from any claims of the Khatedar or occupant of the land, and also free from the claims of any mortgagee or other person claiming through that Khatedar. Now the Khatedar here was clearly on these records Shamrao. And in my judgment, it is almost impossible to contend, as was in fact attempted in the present case, that because the section expressly says that the sale is to be free from all incumbrances created by the occupant, that notwithstanding that the rights of the occupant himself are not to be extinguished. The earlier part of the section clearly shows that the occupancy together with all rights of the occupant over all trees, crops, buildings and things attached to the land, are to be forfeited. To my mind, it would then be a contradiction in terms to say that the occupancy itself is to be sold and yet the rights of the occupant or some of them are to be retained. If, therefore, this sale had been to a third party, I take it that it would be quite impossible for the representatives of Shamrao to contend that this mortgage is in any way subsisting, or that they had any right to or equity in the land.

(3.) I next turn to a different point. It is said in reliance on Section 90 of the Indian Trusts Act, 1882, that here the mortgagee availed himself of his position as such in order to purchase the entire property and thus in effect to defeat the equity of redemption. It is also contended that being a mortgagee in possession he was liable to pay the assessment out of the rents and profits. Now the Transfer of Property Act, 1882, was not then in force in our Presidency. But even if it had been, then under Section 76(c) he must, in the absence of a contract to the contrary, "out of the income of the property" pay the Government revenue. What evidence is there, then, here to show that the income of the property was sufficient to pay the Government revenue ? Counsel for the appellants contends that there is no reliable evidence of what that income then was at all. And when one looks at the judgment of the lower appellate Court, it is clear that the income in those early days is really a matter of guess-work, and that there is no adequate finding on the point. In this connection it must be borne in mind that the assessment, as I have already indicated, had been very largely increased. Therefore it by no means follows that because in some of the previous years the assessment had been paid by one party or the other or half and half, that that necessarily shows that there was income sufficient in later years, when the arrears in fact occurred, to pay the requisite amount. Nor in the present case do I accept the argument that has been pat forward that it is the duty of a mortgagee in possession to be ready with his accounts, and in the absence of these accounts it must be presumed that the income at that date was sufficient. To. my mind, the great lapse of time that has taken place here, namely, of thirty-five years, affords a considerable answer to many of the contentions which have been put forward by the plaintiff. And it is left quite unexplained why Shamrao the person alleged to have been defrauded, and his successors, have remained silent during all these long years. There is a saying that delay defeats equity. And however that may be, it is certainly necessary, when weighing probabilities, to see what was the conduct of the person who is alleged to have been defrauded in this way.