NANNU MAL Vs. RAM CHANDER

JUDGEMENT

(1.) This is an offshoot, as it were, of Second Appeal No. 1490 of 1926 decided by us on 8 November 1929, Nannu Mal V/s. Ramcharan Lal A.I.R. 1930 All. It appears that in execution of a prior mortgage held by two persons Ram Charan Lal and Ganga Sahai, the mortgaged property was sold and was purchased partly by the prior mortgagees and partly by defendants 4 to 7 in the suit. There was a second mortgage in favour of Nannu Mal the plaintiff, although the deed stood benami in the name of Kundan Lal plaintiff 2. The second mortgagee was not a party to the suit of the prior mortgagee. The auction-purchasers Nos. 4 to 7 have built a small house on a part of the property purchased by them. Their contention is that either the plaintiff Nannu Mal should pay them the value of the building erected by them which value has been estimated at Rs. 200 or these defendants should be allowed to remove the materials of the building before the sale takes place.

(2.) The Court of first instance did not accede to the request of the defendants and they appealed to the lower appellate Court. There they succeeded, the learned Judge of the lower appellate Court holding that if plaintiff 1 wanted, to enjoy the benefit of the enhancement in the security due to the constructions made by the appellants, he would have to pay a sum of Rs. 200 to the appellants before the chabutra with the structures thereon is put up for sale otherwise the appellants would be entitled to remove the materials without causing any detriment to the chabutra.

(3.) The plaintiff in this second appeal contends that the building erected by the auction-purchasers was in the nature of an accession to the property and it is therefore under Section 70, T.P. Act, liable to be sold as a part of the mortgaged property. In my opinion there is no answer to this contention. Section 70 has been very widely worded: it does not say by whom the accession should be made. The accession may be the result of nature or it may be effected by the mortgagor or any representative of his. So long as the accession takes place to the mortgaged property, the mortgagee is entitled to it for the purposes of security. Illus. (b) to Section 70, makes it perfectly clear to my mind that the putting up of a building on a part of the mortgaged property amounts to an accession. The mere fact that a transferee, by auction sale of the mortgagor's interest, has put up the building makes no difference at all.