1. This appeal is brought by the original plaintiff to whom in October 1895 the 1st and 2nd defendants mortgaged the land in suit for Rs. 2,000. A term of the mortgage was that the mortgaged property was to remain in possession of the mortgagors, and that they were liable to pay the Government assessment. They continued for some years to pay that assessment, but it fell into arrears for the year 1900-1901 and in consequence the Collector made a demand on the mortgagors for payment. At the same time he made a similar demand on the plaintiff-mortgagee, who refused to pay, I say ' refused to pay,' because he declined to pay except on a certain condition which he was wholly unauthorized to impose. The Collector, therefore, took further steps against the mortgagors, and ultimately in May 1902, he ordered the forfeiture of this land. Afterwards in July of the same year under the provisions of Act VI of 1901 the land was restored to the defaulting mortgagors under the new tenure. In December 1902 the plaintiff filed a suit on the mortgage and obtained a decree. The property now in suit was attached in execution, but the Revenue Authorities raised the attachment under Section 70 of Act VI of 1901. Now the plaintiff's present suit has been dismissed by the learned District Judge on the ground that the plaintiff has no cause of action.
2. Mr. Jayakar, who appears in support of the appeal, urges, in the first place, that the forfeiture by the Collector did not affect the equities existing between the parties prior to the default made in the payment of the assessment. He urges also that his client alleges, and should have an opportunity of proving, that the default made in the payment by the mortgagors was made fraudulently, that is to say, for the set purpose of prejudicing the plaintiff's interests by obtaining the forfeiture of the land and its re-grant to the mortgagors on better terms. It seems to me, however, that both these points and they are the only points which counsel has noticed, are answered by the provisions of Section 56 of the Land Revenue Code as that section now stands. I say ' as the section now stands,' because in that condition it embodies an amendment made by the Act of 1901, an amendment that was made prior to the forfeiture in this suit. There can, in my opinion, be no doubt but that under the rules made under Section 214, as they existed in 1902, the Collector was within his powers in restoring this land to the defaulting mortgagors. That being so, the provisions of Section 56 of the Land Revenue Code come into operation, and the result of that operation, in the circumstances of this case, was in my opinion to vest the land in the first and second defendants free from the incumbrance which had been created and from the equities theretofore existing between them and the plaintiff. That would be the result, even supposing that when the first and second defendants omitted to make the payment, they foresaw that, as the result of such omission, the land might ultimately be restored to them upon better terms. It is upon this ground that I think that the plaintiff has no cause of action in respect of either of the reliefs which he claims in the plaint. Those reliefs are that it should be declared that the order of forfeiture passed by the Collector is illegal, and in the alternative that the plaintiff is entitled to all the rights acquired by the first and second defendants by their taking the land under new tenure. I
3. For the reasons which I have given, I am of opinion that the Collector's order of forfeiture was perfectly legal, and that the rights acquired after the re-grant by the first and second defendants did not enure for the benefit of the plaintiff. I desire, however, to add that, as a matter of fact, the plaintiff was entitled to save the forfeiture by himself paying the overdue instalment, and that, as I have noticed, he refused to do so even when an explicit demand was made from him.
4. In my opinion the appeal fails and should be dismissed with costs.
5. I am of opinion that the decree dismissing the plaintiff's suit is right and should be affirmed with costs. I assume the allegations in the plaint to be true for the purposes of this appeal. Though it would not be correct to say that the plaint discloses no cause of action, it is clear that the admitted facts afford a complete answer to the plaintiff's claim.
6. The facts which are material for this purpose are as follows :-Defendants 1 and 2 failed to pay the assessment in respect of their occupancy, which had been mortgaged by them to the plaintiff in October 1895. The Collector called upon the plaintiff to pay the assessment. But the plaintiff failed to pay the arrears of land revenue, which he was entitled as mortgagee to pay under _s. 80 of the Land Revenue Code to save the-property from the consequences of default in the payment of land revenue. Consequently the Collector ordered the occupancy to be forfeited under Section 153 of the Land Revenue Code on the 26th May 1902 and subsequently ordered the property to be restored to the defaulter, upon terms which' are immaterial for the purposes of this suit, under the rules then in force under Section 214 of the Land Revenue Code. The plaintiff obtained a decree on his mortgage against defendants 1 and 2 on the 23rd March 1903.
7. He now contends that the property in the hands of defendants I and 2 is still subject to the mortgage in his favour and liable to be sold in execution of his decree. I think this contention should be disallowed. Under, Section 56 of the Land Revenue Code as amended by Bombay Act VI of 1901, when there is a forfeiture of occupancy and subsequent disposal of the occupancy under rules or orders in this behalf under Section 214, such occupancy, when disposed of by sale or by restoration to the defaulter or otherwise shall, unless the Collector otherwise directs, be deemed to be freed from all tenures, rights and incumbrances and equities theretofore created in favour of any person other than Government in respect of such occupancy. It is not denied that the Collector has not otherwise directed in this case. The property, therefore, in the hands of defendants 1 and 2 must be deemed to be freed from all incumbrances and equities in favour of the plaintiff. This statutory provision is a complete answer to the plaintiff's claim not only as against defendant 3 but as against defendants 1 and 2.
8. The learned counsel for the plaintiff relies upon Section 90 of the Indian Trusts Act, and contends that the subsequent acquisition of interest in the land by defendants 1 and 2 must enure for the plaintiff's benefit. It is enough to say that the section has no application when there is a clear statutory provision, to the contrary. The land in the hands of defendants 1 and 2 must be deemed to be freed from all incumbrances and equities in favour of the plaintiff under Section 56 of the Land Revenue Code. In my opinion it would be contravening the clear and imperative provisions of the Land Revenue Code to recognize the incumbrance or equity in favour of the plaintiff in this suit. As regards the decided cases, upon which Mr. Jayakar has relied, it is clear that the cases of Ganparshibai v. Timmaya I.L.R. (1899) Bom. 34 : 1 Bom. L.R. 505 and Amolak v. Dhondi I.L.R. (1906) Bom. 466 : 8 Bom. L.R. 360 were decided under the old Section 56, as it stood before the amending Act VI of 1901 came into force. In both the cases the forfeiture and the subsequent disposal of the occupancy were before 1901, and in neither case was forfeiture followed by a sale of the occupancy. The consequences of a forfeiture by itself were considered in those cases, when there was disposal of occupancy otherwise than by sale. The above cases in my opinion have no application to the point now before us. The section has been subsequently amended, and the consequences of a forfeiture are laid down in clear terms. Those consequences follow now, not only when the forfeiture is followed by a sale, but when the occupancy is disposed of by sale or by restoration to the defaulter or otherwise. The only other case to which reference has been made is Shripati v. Piraji : (1907)9BOMLR1018 . The facts are not fully stated in the judgment, there is no reference to Section 56-of the Land Revenue Code, and the case was not argued on behalf of the respondent. It is difficult to gather what the learned Judges thought of the provision in Section 56 of the Land Revenue Code, to which I have referred. Under these circumstances I am unable to treat this case as an authority in favour of the plaintiff's contention in face of the terms of Section 56.
9. In this view of the case no allegations of any improper intention on the part of defendants 1 and 2 in making a default in paying the land revenue nor any allegation of misrepresentation by defendants 1 and 2 to the Collector could affect the result, particularly when the plaintiff was given an opportunity to pay the arrears.