SHEO PUJAN PRASAD SINGH Vs. BHAGWATI DUBEY

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for declaration of title and recovery of possession in respect of certain raiyati lands. These lands had been recorded in the survey in plots Nos. 84,60,290 and 291 under khata No. 91 and were the raiyati lands of one Ramparbesh Kandu and Ramjanam Kandu. The landlords were Tilak Ojha, and Someshwar Ojha, ancestors of one Radha Ojha who owned 15.45 acres of milki lakheraj lands recorded in khewat No. 11. The disputed lands were under this khewat and carried a jama of Rs. 10-5-0. The milki lakheraj property had been given in usufructuary mortgage to one Mt. Parbati Kuer, widow of Sheo Tehal Misra and the ancestor of defendants 1 and 2 under a rehan-deed dated 19 shravan 1291 Fs, and under a sale-deed dated 22nd August 1940 it was sold to the plaintiff. On 7 August 1941 the plaintiff redeemed the rehan and got possession of the entire milki property exclusive of the raiyati lands aforesaid. The case made out by the plaintiff was that it was after redemption that he came to know that defendants 1 and 2 had purchased these lands at a court sale in execution of a decree for rent obtained by them as mortgagees, and that when he came to know of it he offered them the amount for which they had purchased the lands, but that they refused to part with them. Hence the suit for possession. Defendant 3 was impleaded on the allegation that he was a subsequent transferee with regard to the disputed lands under a farzi and a fraudulent sale-deed executed in his name by defendants 1 and 2. The claim for possession was resisted inter alia on the ground that these lands which had been acquired during the continuance of the mortgage could not be deemed to be an accession to the mortgaged property.

(2.) The Court of first instance held that the plaintiff was entitled to get back the lands on payment of Rs. 76-5 0 the amount for which defendants 1 and 2 had purchased the lands at the court-sale. On appeal his decision was reversed by the learned Subordinate Judge who was of the opinion that the acquisition was made by the mortgagee for his own benefit and was never treated as merged in the mortgage security. He further held that it was not open to the plaintiff to claim this land after redemption, and that if he treated this property as an accession to the mortgaged property, he ought to have offered the amount of Rs. 76-5-0 at the time when he redeemed the mortgaged property.

(3.) The main question which we have to decide is whether the acquisition of these raiyati lands by the mortgagees during the period the mortgage was subsisting would be deemed to be an accession to the mortgaged property. Section 63, T.P. Act, runs as follows: 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. Where such accession has been acquired at the expense of the mortgagee, and is capable of separate possession or enjoyment without detriment to the principal property, the mortgagor desiring to take the accession must pay to the mortgagee the expense of acquiring it. If such separate possession or enjoyment is not possible, the accession must be delivered with the property; the mortgagor being liable, in the case of an acquisition necessary to preserve the property from destruction, forfeiture or sale, or made with his assent, to pay the proper cost thereof, as an addition to the principal money, with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum. In the case last mentioned the profits, if any, arising from the accession shall be credited to the mortgagor. Where the mortgage is usufructuary and the accession has been acquired at the expense of the mortgagee, the profits, if any, arising from the accession shall, in the absence of a contract to the contrary, be set off against interest, if any, payable on the money so expended. This section and Section 70, T.P. Act, are both based on the principle enunciated by the maxims accession cedit principale (the increase follows the principal) and accessorium non ducit sed sequitur suum principale (that which is the accessory or incident does not lead but follows its principal). It is, however, necessary for the application of this section and Section 70 that the property or right claimed by the mortgagor under this section or by the mortgagee under Section 70 should constitute an accession. The word "accession" has not been defined in the Act, and in the Roman law "accession" is the general name given to every accessory thing, that has been added to a principal thing from without, and has been connected with it, whether by the powers of nature or by the will of man, so that in virtue of this connection, it is regarded as part and parcel of the thing. The question whether a particular thing can be regarded as a part and parcel of another thing has to be decided in the light of various facts--in some cases upon the intention of the parties and in some upon the law applicable thereto and in some upon both. There have been cases even in this Court in which it has been pointed out that the question whether a mortgagee treated the acquisition as merged in mortgage security is a question of intention. Das J. in the case of Ram Rai V/s. Maheshwar Prasad Singh A.I.R. 1925 Pat. 836 observed as follows: I have no doubt whatever that tenancy lands which are acquired by a mortgagee in possession by virtue of an ejectment decree form an accession to the mortgaged property, and that the mortgagor is entitled to such lands on redemption, provided he pays to the mortgagee the expense of acquiring it. This case had once been remanded by their Lordships, and in the remand order Das J. had said as follows: So far as the tenancy lands of Harakh are concemed (and there is no dispute that the 9 bighas of Harakh were tenancy lands) the question is a little more difficult. It appears that the mortgagees in their suit for rent against Harakh got a decree for ejectment against him. The learned Judge on behalf of the respondents argued that as soon as ejectment takes place the raiyati interest is extinguished and the landlord gets into possession freed from the tenancy. That undoubtedly is so; but the question still remains whether the mortgagees treated these acquisitions as merged in the mortgage-security or not. The question is again one of intention and I am not satisfied that the learned District Judge has properly considered all the evidence in the case.