Amberson Marten, Kt., C.J.
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.
4. As for the suggestion that the mortgagor did not know of this sale by Government, that to my mind is unbelievable. This was a large area of land, and it had to be sold after proclamation by beat of drum. To suggest that the mortgagor know nothing whatever about it, and remained silent notwithstanding the sale, is a matter which I for one do not believe. And in so far as the question is one of the onus of proof, it seems to me that under the Indian Evidence Act, the onus lies upon the plaintiff, namely, to prove the default of the mortgagee. Prima facie under the Land Revenue Code the liability to pay this assessment would fall on the Khatedar, namely, Shamrao. As between the mortgagor and the mortgagee, clearly the mortgagor would have to pay this assessment, apart from the rents and profits. It cannot be suggested that the mortgagee would have to put his hand in his pocket and pay the assessment out of his own moneys.
5. So the crux of the case really comes to this, that the plaintiffs must show that the forfeiture and the revenue sale were due to the default of the mortgagee in not paying this assessment, and that in order to do this he must show that the income of the land was sufficient to pay the assessment, or that in some other way the mortgagor put the mortgagee in funds wherewith to pay these moneys. To my mind, the evidence in the case is wholly insufficient to enable us to draw that inference. And I may go even further and say that there is no evidence before us on which one can fairly arrive at this finding, or at the further inference that the mortgagee deliberately did this with the intention of defrauding the mortgagor and of acquiring the property for himself after the revenue sale.
6. Under those circumstances, it seems to me that the conclusion arrived at by the lower-appellate Court cannot be supported, and that this appeal must be allowed. Under those circumstances, we have thought it unnecessary to call on counsel for the appellants on the further point as to limitation. In my judgment, therefore, the appeal ought to be allowed, the decree of the lower appellate Court set aside and the suit dismissed with costs throughout.
7. I agree. The facts appear at first sight a little complicated, but the only point which arises in appeal, is that there were two mortgages in 1872 by Shamrao the grandfather of plaintiff No.l. In 1884, as the assessment was not paid, an order of forfeiture was made by the Collector and this land was sold under Section 56 of the Bombay Land Revenue Code, as it then stood. It will appear from the judgment of the lower appellate Court, and also from the arguments in this case, that the decided cases of this Court regarding the effect of a forfeiture are either before the Land Revenue Code, 1879, came into operation, or subsequent to the amendment of the Code in 1901. But the terms of Section 56 of the Bombay Land Revenue Code, as they stood before the amendment, are, to my mind, quite clear enough to show that where there has been a forfeiture of the occupancy followed by a sale, as in the present case, the occupancy passes free from all tenures, incumbrances and rights created by the occupant or holder or anywise subsisting as against him. The amendment in 1901 was made, I believe, to meet the ease of a regrant on a restricted tenure to the original occupant after a forfeiture, a case which was not expressly covered by the old Section 56, and as to which there existed some doubt. However that may be, the terms of Section 56, as it stood before the amendment, are quite clear, and after the forfeiture and sale the mortgages must be regarded as no longer existing. This being so, there would be no question of any equity of redemption remaining in the mortgagor, for there would be no mortgage which he could redeem.
8. In the present case, there is no evidence that the forfeiture was due to the wilful default of the mortgagee and that he was in a position to pay land revenue out of rents and profits of the lands and intentionally omitted to do so. Under the Land Revenue Code, Section 136, the person primarily responsible to Government for the land revenue was the registered occupant, in this case the mortgagor Shamrao. It is to be presumed that official acts were regularly performed, and that he was called upon to pay the assessment, and that the forfeiture and sale took place after notice to him. In the circumstances, I have no doubt that the revenue sale of 1884 extinguished the mortgages, and no equity of redemption was left, or could be left, in Shamrao. And this view receives support from the fact that from the date of that revenue sale the mortgagor's connection with the land appears to have ceased altogether, and we do not find that either he or his son made any attempt to raise any claim to the land and it is only now after about thirty-five years that his grandson and his assignee come forward to claim to be allowed to redeem the land.
9. In these circumstances, I am of opinion that the appeal should be allowed and that the decree of the lower appellate Court should be set aside, and the suit dismissed with costs throughout.