1. From the year 1894 to 1903 the 1st defendant was a saw-mortgagee of certain lands mortgaged to him by the plaintiff's father In 1900 the mortgagor died, and in the following year his widow Kohili for the benefit of those interested in the property took an advance by way of tagavi from the mamlatdar, and gave a charge upon one of the survey numbers, namely 311, as collateral security for payment of the loan. In June 1903 acting on behalf of herself and the plaintiff, her minor daughter, she executed a mortgage-deed with possession in favour of the 1st defendant, and put him in possession of all the property previously charged under the saw-mortgage including the Survey No. 311. The plaintiff has brought this suit in 1912 to redeem, she being entitled to the benefit of the Dekkhan Agriculturists' Relief Act.
2. The only question in the appeal is with reference to Survey No. 311. That survey number was sold in or about 1906 to satisfy the claim of Government in respect of the tagavi advance, and it was purchased ostensibly by the 2nd defendant who was the gumasta of the 1st defendant, mortgagee From him it was subsequently purchased by the 3rd defendant, who is the uncle of the plaintiff and who had for many years been cultivating the land as tenant under the mortgagee, and prior to the mortgage under the mortgagor. The 3rd defendant claims to be entitled to hold Survey No. 311 free from any liability to be redeemed by the mortgagor. Upon the findings of the lower Court he must be held to have had notice of everything, that occurred in connection with the property, and cannot claim the position of a bona fide purchaser without notice of Survey No. 311, if there were in fact any claims enforceable against the vendor with reference to that plot. It must also be taken on the findings of fast of the lower Courts that the 2nd defendant, purchaser, was a benamidar for the 1st defendant, mortgagee.
3. It is contended on behalf of the plaintiff that the mortgagee has in effecting the purchase availed himself of his position as mortgagee to gain an advantage in derogation of the rights of the mortgagor. If the sale took place at the instance of the mamlatdar in consequence of some wilful default on the part of the mortgagee, it may fairly be said that in acquiring the property through his benamidar at such sale he has availed himself of his position as mortgagee to gain an advantage spoken of in Section 90 of the Indian Trusts Act. The question, therefore, is whether the sale took place owing to his default. Section 76 of the Transfer of Property Act lays down that when, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property, he must, in the absence of a contract to the contrary, out of the income of the property, pay the Government revenue, and all other charges of a public nature accruing due in respect thereof during such possession'. So far from there being no contact to the contrary in the mortgage-deed, the mortgagee agrees henceforth to pay all sarkari claims in relation to the property. The expression which we have translated 'claims' is an expression which is not usual to describe merely Government revenue. The point has been dealt with by the learned District Judge as follows: 'Are tagavi dues a charge of a public nature' within the meaning of Section 76 (c)? I think they are. I think that the clause should be liberally construed, as it has for its object the protection of the land from forfeiture or sale for default in payment of Government demand accruing due in respect of the land while it is in the possession of the mortgagee.' It is clear, therefore, that he had in his mind the question whether this was a Government demand accruing due in respect of the land while it was in the possession of the mortgagee, and he comes to the conclusion that it was. It is argued that as the tagavi advance preceded the mortgage with possession, it would not be a Government demand accruing due in respect of the land while in the possession of the mortgagee. That is a question which might have been settled by evidence if it had been put in issue in the lower Court: the learned Judge feels no doubt as to what the answer should be, and we are not prepared in second appeal to entertain any doubt as to the correctness of his finding. That being so, Section 90 of the Trusts Act would apply, because the sale has taken place owing to the default of the mortgagee. But it was said that once the sale takes place the provisions of Section 56 of the Land Revenue Code would apply, and, if so, there would be no room for the application of Section 90 with reference to the conduct of the mortgagee as such, because ex hypothesi the operation of Section 56 of the Land Revenue Code would have extinguished all rights of the mortgagee. We are of opinion that Section 56 of the Land Revenue Code does not apply, as it has been held as a fact that there has been no forfeiture such as would be a necessary condition precedent under Section 153 of the Land Revenue Code to the application of the provisions of Section 58 for the purpose of recovering, dues as arrears of land revenue. The argument also appears to us to be slightly circuitous, because ex hypothesi it is by reason of his default as mortgagee, and by his improperly availing himself of his position as mortgagee, that the sale has taken place. How then can it be said that he is, to obtain immunity from his breach of trust by reason of the extinction of his position as, mortgagee through his fraudulent action as, mortgagee? This, it appears to us, is also the answer to a point which we do not, think was appreciated by the learned District Judge, a point of the same nature as that argued under Section 56 of the Land Revenue Code, and based upon the words of the proviso to Section 7 of the Land Improvement Loans Act, which by implication would put an end, upon the sale by the Collector for recovery of a Government loan, to the interest of the borrower and of the mortgagee of that interest. For these reasons we think that the decree of the lower Appellate Court was right and should be affirmed with costs.