(1.) This is a defendant's appeal arising out of a suit for redemption. The plaintiff's predecessor, Ram Kumar, made three usufructuary mortgages of his fixed rate tenancy in succession. In April 1888, he mortgaged about 6 bighas and odd to Hakim Singh for Rs. 272 which was redeemable in 1302 Fasli. In November 1888, he mortgaged another 8 bighas and odd of his fixed rate tenancy to Sheo Mangal for Rs. 550, which was redeemable in 1306 Fasli. About two bighas and odd of the holding still remained in the possession of the mortgagor. In 1894 he mortgaged the entire holding for a sum of Rs. 1,352 to Nand Kumar. He left out of the mortgage money Rs. 272 for payment of the first mortgage in 1302 Fasli, and Rs. 550 for payment of the second mortgage in 1306 Fasli. It was agreed between the mortgagor and the mortgagee. Nand Kumar, that the latter should redeem the prior mortgages and after paying the rent due to the zamindar should appropriate the profits in lieu of interest. It is quite clear that if all the parties had stuck to their agreements, the tenant mortgagor would not have been liable to pay any rent whatsoever after the year 1894. The first two mortgagees were liable to pay rent in proportion to the areas in their possession and the remainder was mortgaged to Nand Kumar who became liable to pay rent in proportion. It is also apparent that if Nand Kumar had redeemed Hakim and Sheo Mangal, he would have obtained possession of the entire holding and would have paid the entire rent to the zamindar. In either case, the tenant mortgagor after the mortgage of 1894, was relieved of his duty to pay any rent to the zamindar, though of course as regards the zamindar his liability to him in the eye of the law remained.
(2.) Default was undoubtedly made by all the three mortgagees and the zamindar brought a suit for arrears of rent of 1304, 1305 and 1306 and a part of 1307 Fasli. He impleaded not only the tenant mortgagor, but all the three mortgagees and the revenue Court passed a decree against all of them. It made the tenant and the first two mortgagees liable for rent up to 1306 Fasli, and made the mortgagor and the first and the third mortgagee liable for the rent for 1307 Fasli. The fact was that in Jeth 1306 Fasli Nand Kumar the third mortgagee, redeemed the second mortgage in favour of Sheo Mangal Sheo Mangal was thus not made liable for any part of the rent for 1307 Fasli.
(3.) About Rs. 80 only were paid in satisfaction of the decree and for the balance the decree was executed. At first the area in the possession of Hakim Singh was put up for sale and purchased by a man named Ajodhiya, who was a servant of Nand Kumar. Hakim Singh put in an objection that he had paid his share of the decree and that the sale had been brought about by Nand Kumar in collusion with qurq-amin. In the meantime Ram Kumar died. The first sale was actually set aside. Subsequently the whole of the tenancy was put up for sale and purchased in the name of Ram Autar. Both the Courts below have found that this man was a cart driver of the mortgagee Nand Kumar, and that the purchase by Ram Autar was in fact benami for Nand Kumar. In fact subsequently when Nand Kumar, died, his widow transferred the property to the heirs of Nand Kumar. This sale was duly confirmed.