1. This litigation relates to the redemption of a mortgage with possession of the property in dispute effected in the year 1905 more than four decades ago and ever since, the rights to the property are fluctuating amongstdifferent parties and their representatives whose respective claims will be discussed later.
2. The suits were filed in the Court of the District Judge, Mysore. Original Suit No. 45 of 1945-46 is the earlier suit in which the appellant before this Court was impleaded as defendant 6 and the respondents to this appeal as defendants 4 and 5 respectively. The plaintiff in that suit sought for a declaration of title to the suit property in the character of the son and heir of one Hyath Bi who it is alleged was the previous owner of the property and also for a declaration that the sale by defendants 1 to 3 and their mother in favour of defendant 6 is null and void and that defendants 4 and 5 were in possession of the property as trustees for and on behalf of the plaintiff. The second suit, O. S. No. 3 Of 46-47, from which this appeal arises was filed by the appellant as plaintiff against the present respondents for redemption of the suit property and for damages. By consent of the parties, both the suits were consolidated and tried together. Common evidence was let in and a single judgment was given by the same Judge on the same day. The conclusions in the judgment were followed up in both the decrees, which however were drawn up separately. Both the suits were dismissed. The plaintiff in O. s. No. 3 of 46-47 has filed this appeal against the judgment and decree in that suit; but no appeal has been filed by any of the parties in O. S. No. 45 of 1945-46.
3. At the outset Sri Mirle Lakshminaranappa, on behalf of the respondents, raised a preliminary objection for the hearing of the appeal to the effect that the appeal is barred by the principles of 'res judicata'. Arguments on the preliminary objection as also on the merits of the case were heard. Before discussing the nature of the objection set forth above, it is useful to set out the findings on the relevant issues in both the suits for a proper appreciation of the objection raised. The lower Court recorded its findings in O. S. No. 45/45-46 regarding plaintiff's claims in that suit thus :
'On the first issue, I hold that Hyath Bi was not the owner of the suit property. On the second issue, I hold that the plaintiff is not the legitimate son and heir of Hyath Bi as alleged by him'.
The findings on the other issues concerning the parties to this appeal were recorded as follows '
On the 8th issue I hold that defendants 4 and 5 became the owners of the suit house as pleaded by them. On the 9th issue I hold that the title to the suit house has not passed on to defendant 6 by virtue of the sale held on 20-6-40 and 8-7-42 as pleaded by him. On the 10th issue I hold that defendant 6 has not a right of redemption as pleaded.'
In Original Suit No. 3 of 1946-47 in which the appellant was the plaintiff, the findings on the issues were as under
'On the 1st issue, I hold that the plaintiff has not acquired the equity of redemption and he is not entitled to redeem the suit property. On the second issue I hold that the defendants have become the absolute owners of the suit property and the suit property therefore is not liable for redemption'.
The first and second issues in the latter suit are the same as the 10th and 8th issues in the earlier suit.
4. It is contended that findings on Issues Nos. 10 and 8 in O. S. No. 45 of 45-46 have become final and operate as 'res judicata' since no appeal was filed against the decree in that suit and the existence of a previous judgment is deemed to be abar inasmuch as the matter has once already been fully canvassed and fairly and finally determined between the parties by a competent court of law.
5. It is a rale of law that no man shall be twice vexed for the same cause. This was expressed by the well known maxim 'res judicata pro Procreate acceipitur' which is understood to mean that the same question which has once been judicially decided should not again be reopened for consideration between the same parties in another action. Section 11, Civil P. C., provides that no Court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under whom they claim to try such subsequent suit or a suit in which such issue has been subsequently raised has been heard and finally decided by such Court and Explanation (1) to the said section states that the expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. As is evident by the findings on the issues extracted above, there is, however, little or no about that the matter in the suit now under consideration was directly and substantially in issue in O. S. No. 45 of 45-46 between the parties to this suit and was Heard and filially decided.
6. Whether the term 'former suit' means a distinct suit decided earlier between the same parties and extends to opposing parties 'inter se' so as to attract the principles of res judicata, opinion differs. The expression 'former suit' is generally interpreted to mean a suit previously decided and the same rule applies to appeals also. The previous decision becomes final in relation to the time when the subsequent suit is heard. Judicial opinion extending the bar of 'res judicata' even between co-defendants 'inter se' in a suit under certain circumstances is not wanting. The two suits under consideration have been between the same parties wherein common issues were raised and disposed of, the judgment being the common foundation of the two decrees. It is argued that the hearing of this appeal will reopen the decision so as to necessitate a re-examination of the grounds on which the decisions rest. There is again divergence of opinion whether a single judgment could form a final adjudication between the parties in the same manner as two independent and separate judgments governing two separate decrees between the same parties. Where cross-suits between the same parties are tried together and decided by a single judgment, and an appeal is filed against one of the decrees, the decree unappealed, it is held, does not operate as a bar so as to preclude the Court from dealing with the decree appealed against, as the very object of the appeal, in substance, if not in form, is to get rid of the decision which is pleaded as a bar. Some courts hold that a single decision in two suits is not a final adjudication between the par-tics while others hold that the decision which forms the basis of a decree cannot be re-agitated, as one of the decrees under that decision which has never been directly challenged by way of an appeal would be collaterally attacked and imperiled. This conflict of decisions has mainly centred round the suits tried together on the same evidence and disposed of by the same Judge, the judgment passed in one case being followed up in the other, and an appeal filed against one of them, when no appeal was filed against the other decree though separate decrees were drawn up.
7. The Madras High Court is almost consistently in favour of holding that there is no bar of res judicata in such circumstances. (See Panchanda Velan v. Vaithinatha Sastrial', 29 Mad 333 (A). -- 'Bamaswami Chetty v. Karuppan Chetty', AIR 1916 Mad 1133 (B); -- 'Sumanna-kone v. Muthupalanichetty' : AIR1926Mad378 ; -- 'Lakshmi Animal v. Official Receiver' AIR 1935 Mad 214 (D) --'Govindayya v. Ramamurthi', AIR 1941 Mad 524 (E); --'Pappammal v. Meena-mmal', AIR 1943 Mad 139 (F) and --'Neelakandhan Nambudripad v. Krishna Ayyar', AIR 1943 Mad 544 (G). The same view is expressed later by by the High courts of Lahore, Allahabad, Lucknow, Oudh and Nagpur (Vide -- 'Labh Singh v. Shah-bean Mir.', AIR 1926 Lah 289 (H); -- 'Ghansham Singh v. Bhola Singh', AIR 1923 All 490 (2) (I);
--'Behari Lal v. Ramchandra', AIR 1942 Oudh 335 (J); -- 'Shankar Sahai v. Bhagwati Sahai', AIR 1946 Oudh 33 (K) and -- 'Manohar Vinayak v. Laxman Anandrao', AIR 1947 Nag 248 (L). The Allahabad High Court has held different views at different times. (Vide --Chhajju v. Sheo Sahai', 10 All 123 (M); -- 'Damodar v. Sheoram Das', 29 All 730 (N); --'Zaharia v. Debi', 33 All 51 (O); --'Dakhni Din v. Ali Asghar', 33 All 151 (P) and -- Balhari v. Shiva', 18 All LJ 40 (Q). But, the Pull Bench decision in 'AIR 1923 All 490 (2) (I)' is in consonance with the Madras view. In the case reported in -- 'Mariam Nissa v. Joynab', 33 Cal 1101 (R), the majority opinion of the Full Bench has been in favour of the Madras rule, though subsequently some Division Benches have taken a contrary view -- 'Midnapore Zimindari Co. Ltd. v. Nitya Kali Pasi, AIR 1914 Cal 693 (S); -- 'Gangadhar v. Sckali', AIR 1921 Cal 291 (T) and --'Isup Ali v. Gourchandra', AIR 1923 Cal 496 (U). The later view as expressed in --'Manmohan v. Shib Chandra', AIR 1931 Cal 353 (V) is in agreement with the Full Bench decision in 33 Cal 1101 (R). The High Court of . Patna in -- 'Raghunandan v. Sowbagya Sundari', AIR 1948 Pat 191 (W) followed the earlier decision in -- 'Gertrude Gates v. Millicent D'Silva', AIR 1933 Pat 78 (X) which in turn relied upon 'AIR 1923 Cal 496 (U)'. -- 'Dhani Singh v. Chandra chcor', AIR 1924 Pat 823 (Y) follows '33 All 151 (P)'. The decision in -- 'U Tun Maung v. Z. Ah Choy', AIR 1938 Rang. 401 (YA) follows '33 All. 151' (P)'. The Full Bench of Allahabad High Court in 'AIR 1923 All 490 (2) (I) which held that there is no such bar for hearing the appeal expressed the opinion that the decisions in '29 All 730 (N) ; 33 All 151 (P) and 18 All LJ 40 (Q)' were no longer good law. The decisions of the Patna and Rangoon High Courts which followed the earlier decisions of Allahabad High Court and that of Calcutta, viz. '33 All 151, (P)' and ' (U)' have been in effect disapproved in 'AIR 1923 All 490 (2) (I)' and 'AIR, 1931 Cal 353' (V)'. So the decisions of Patna and Rangoon High Courts are no longer authoritative. The Oudh court follows the Full Bench decision in 'AIR 1923 All 490 (2) (I)'. The preponderance of judicial opinion has thus gravitated in favour of not raising a bar against hearing one of the appeals when two suits are disposed of by one and the same judgment and no appeal is filed against the other.
8. It only remains for us to consider the decision of this Court reported in '46 Mys HCR 287 (Z)' where it is hold that
'a decree which has not been reversed or modified on appeal, review or revision or set aside in appropriate proceedings on the ground of fraud or for any other reason is declared to be not binding on any one of the parties, cannot be superseded by the result of any other suit'.
By the expression 'cannot be superseded' Reilly, C. J. is understood to mean that the final adjudication of the decree under appeal should not have the effect of reversing or modifying altogether the decree, not appealed against in which case the , provisions of Section 11, Civil P. C. would inevitably be defeated. The circumstances in that case were probably such as to give room for disastrous consequences. If this appeal is allowed, it will not have the effect of either reversing or modifying the decree in O. S. 45/45-6 dismissing the case of the plaintiff therein. We, therefore, fail to see how the judgment in the appeal before us could possibly have the effect of superseding the decree in the declaratory suit, O. S. No. 45/45-16. If this should be a crucial test to be employed in cases of this type, we are clearly of the opinion that the test is wholly inapplicable to the facts of the case under consideration. As observed by Sir Lawrence Jenkins in -- 'Sheo Person Singh v. Ram Nandan Prasad', AIR 1916 PC 78 (Z1),
'the application of the rule by Courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits, allowed by law'.
Where a consolidated judgment forms the basis of two decrees in suits between the same parties and common issues are raised and disposed of and it is reopened so as to necessitate the re-examination of the grounds of that judgment, it could hardly be said that it represents a final adjudication between the parties. If the grounds for decision are common and arc attacked as erroneous, its finality cannot be invoked for supporting the plea of res judicata till it has become really final. The existence of two decrees is merely for the sake of complying with the barest formalities of law and it would indeed be the negation of the principle to say that a matter which is still 'res Integra' should operate nevertheless as 'res judicata'. This statement of the law accepted by the majority of Indian Courts is, in our opinion, a correct and wholesome enunciation of the principle underlying the rule of 'res judicata' and forms a proper guide for the application of the said principle.
9. The next point for consideration is whether in such circumstances there could be res judicata as between the co-defendants. The principle governing this aspect of the matter has been clearly enunciated in the decision reported in --'Bhubindra Narayan v. Tarupriya Debya', AIR 1950 Assam 119 (Z2) which may with advantage toe quoted. Their Lordships held
'Under certain circumstances decision of issue between co-defendants, even though not incorporated in the decree, may operate as res judicata. The conditions necessary for a finding to operate as res judicata between co-defendants are that there should be a conflict of interest between co-defendants and that it should be necessary to resolve the conflict in order to give relief to the plaintiff. The conflict or the Issue must have been finally decided and the co-defendants must have been either necessary or at least proper parties in the former suit'.
Whether the circumstances are such as to apply the principle of res judicata as between the co-defendants need an examination of the particular facts of each case. It has been urged that the finding in O. S. No. 45 of 45-46 which has become final operates as 'res judicata' against the parties in this suit as they were co-defendants in the former The conditions necessary for a finding to operate as res judicata between co-defendants are that there should be a conflict of interest between co-defendants and that it should be necessary to resolve the conflict in order to give relief to plaintiff and the conflict or the issue must have been finally decided and the co-defendants must have been either necessary or at least proper parties in the former suit. Assuming that there is a final decision in this suit by reason of a decree in O. S. No. 45 of 45-46 and also that there was a conflict of interest between the co-defendants, we have to find out whether it was necessary to resolve that conflict to give relief to the plaintiff in O. S. No. 45 of 45-46.
'If the relief given to the plaintiff does not require or involve a decision of any dispute between the co-defendants, the co-defendants will not be bound as between each other' (Vide --Maung Seindone v. Ma Pan Nyun', AIR 1933 (P.C. 161 (Z3).
The findings on the first two issues were that the suit property did not belong to Hyath Bi and the plaintiff was not the legitimate son and heir of the said Hyath Bi. The plaintiff in that suit did expressly claim the suit property in the character of his being the legitimate son of and heir to Hyath Bi. Both the issues were found against him. The claim of the plaintiff should have been defeated on the finding on either or both the issues referred to above even without recording any findings on Issues Nos. 8, 9 and 10 in that suit. So, the relief given to the plaintiff did not involve any finding on the respective titles 'inter se' of defendants 4 and 5 on the one hand and defendant 6 on the other. When the plaintiff in that suit was found to be not the legitimate son of Hyath Bi and not entitled to the suit property the suit ought to fail and should have been dismissed. The same issues were involved in the other suit which is now under consideration and findings were accordingly recorded; the findings on Issues Nos. 8, 9 and 10 in O. S. No. 45/45-46 were not at all necessary and indeed superfluous in order to give relief to the plaintiff, in the light of the above discussion, we are inclined to hold that the findings on issues 8, 9 and 10 in O. S. No. 45/45-46 touching the parties to this suit who were arrayed as defendants in the other suit will not operate as res judicata for hearing this appeal.
10. Regarding the merits of the case, the fact is that the appellant who was the plaintiff in the Court below filed the suit, O. S. No. 3/46-17, against the respondents for redemption of the suit property. It is common case that the property was mortgaged with possession to Davoodsab on 23-8-1905 for Rs. 2000/-. The equity of redemption vested in Thayamma, the survivor of the mortgagor and the said Thayamma sold the equity of redemption in the property to one Rachamma alias Hyath Bi on 10-9-1929. Hyath Bi bequeathed her right to her daughter Choudi and her three sons, who in their turn sold the property to the plaintiff under a registered sale deed, Exhibit X, dated 26-8-1940. This is one of the documents on which the plaintiff in this suit rests his claim to redeem the property. One Ahmed Sab, the eldest son of Davcod Sab, the original mortgagee, filed a suit for arrears of rent against Thayamma in O. S. No. 299 of 1917-18 on the file of the First Munsiff, Mysore, and obtained a decree and in execution of the said decree in Execution Case No. 135/23-29 got the right of redemption vested in Thayamma attached and sold and the same was purchased by his three minor sons represented by one Dastagir Sab as guardian in the court sale on 18-3-1930 who obtained possession of the property in the subsequent proceedings. These three sons of Ahmadsab, viz. Amirjan, Khalandar and Nabijan sold the suit property to one Pashupathiah under a registered sale deed dated 24-9-1940, who in turn sold the same to the plaintiff under a registered sale deed.Ex. 13, dated 8-7-1942. The plaintiff thus claims to have perfected his title to redeem the property from the defendants-respondents who it is averred were in possession of the suit property as mortgagees.
11. The respondents disputed the claim of the plaintiff to redeem the suit property and contended that there was no right of redemption vested in Thayamma through whom the plaintiff and his predecessors-in-title claim as the said right of Thayamma had either been lost or extinguished by reason of attachment and sale, in the execution proceedings, viz. in Execution Case No. 135/28-29 arising out of the decree obtained by Ahmadsab against Thayamma for arrears of rent due from her. The respondents further allege that in respect of the arrears of tax payable on the suit property, the Mysore City Municipality filed a suit, O. S. No. SO/31-32, on the file of the First Munsiff, Mysore, and obtained a decree therein and in execution of the said decree the property was purchased by the said Municipality in the Court sale. The defendants have next set up a claim of their own to the suit property on the ground that they have perfected their right and title to the property by purchasing the said property from the Municipality under a registered sale deed, dated 28-1-1913. The learned District Judge who tried the case upheld the contentions of the defendants and dismissed the plaintiffs suit with costs. It is against this judgment that the plaintiff has preferred this appeal.
12. The question for consideration before us is whether the right of redemption vested in Thayamma, the original owner of the suit schedule property, has passed on the plaintiff who claims the right to redeem the property under two documents, Exs. 10 and 13, dated 26-8-1940 and 8-7-42 respectively and whether they are affected by the proceedings which will be adverted to presently so as to render either or both of them null and void as contended by the respondents. The question that will have to be next considered is whether the claim of the respondents that they have perfected their title to the suit property as owners thereof holds good as against the appellant and if not, to what amount he would be entitled before he is directed to redeem the property.
13. It is admitted by both the parties that the right of redemption vested originally in Thayamma as the other mortgagors Chandrasani, Nagasani and Kamalasam subsequently died without heirs leaving Thayamma alone as the sole heir to the property. As stated above, Thayamma sold her right in the property to one Rachamma alias Hyath Bi under a registered deed, Ex. 23. dated 10-9-1929, subject, of course, to the usufructuary mortgage in favour of Davoodsab. One Ahmadsab, son of the said mortgagee Davoodsab filed a suit against Thayamma in O. S. 299 of 1917-18 on the file of the First Munsiff, Mysore, for arrears of rent due from her and obtained a decree in respect thereof. It is also in evidence that the suit schedule property was got attached under Exhibit XX on 10-3-1929 in execution of the said decree in Ex. Case No. 135 of 28-23 and that the said property was sold and purchased on 8-3-1930 in the court sale by the legal representatives of the said Ahmadsab, viz. his three minor sons Ameerjan, Khalander and Nabijan represented by their guardian, their paternal uncle, one Dastagirsab. Exhibit 21 is the sale certificate granted to them. The attachment of the suit property in execution of the money decree obtained by the said Ahmedsab having been effected long prior to the sale by Thayamma in favour of Hyath Bi under Exhibit 23, dated 10-9-1929, as admitted by the appellantand proved by the evidence in the case, the claim of the appellant under the document, Ex. 10, dated , 26-8-1940, executed in his favour by Chowdi and her three song who purported to have obtained a right to the suit property under a registered will, Ex. 11, dated; 28-9-1935, left by Hyath Bi, the vendee of the right of redemption from Thayamma, must be deemed to be imperfect. It, therefore, follows that the sale deed, Ex. 10, is subject to the attachment and did not convey a perfect title to the appellant.
14. From the facts set forth in the preceding paragraphs it is seen that the right of redemption which originally vested in Thayamma passed on to the three minor sons of Ahmedsab viz. Amirjan, Khalander and Nabijan represented by their guardian Dastagirsab by reason of the proceedings taken up by them in Execution Case No. 136/28-29. Exhibit 21, the sale certificate, issued to them by the Court shows that the property was sold to them on 8-3-1930 for Rs. 347-7-0 subject to the prior mortgage in favour of Davoodsab. Thereafter, that is on 11-7-1930, the aforesaid minor sons of Ahemedsab represented by Dastagirsab obtained possession of the suit property through court. These three sons of Ahmedsab sold the property to one Pasupathaiya under a registered sale deed, dated 24-9-1910, who in turn-sold the same to the plaintiff under a registered sale deed, Ex. 13 dated 8-7-1942. The sale under Ex. 10 subject to the prior attachment is, it is argued, perfected by the purchase of attachment rights. As by this time, it is clear beyond all reasonable doubt that Hyath Bi derived imperfect right in the suit property conveyed to her by Thayamma, it remains to be seen what bearing the proceedings in O. S. 80 of 31-32 and the connected execution proceedings taken up by the Mysore Municipal Council have, on the rights of the appellant to the suit schedule property. The Mysore Municipality filed a suit, O. S. No. 80/31-32, on the file of the First Munsiff,. Mysore, for recovery of arrears of tax due on the suit schedule property against Hyath Bi as owner of the suit property and obtained a decree. In execution of the said decree in Execution Case No. 693/31-32 the suit schedule property was got attached by the decree-holder on 31-7-1932. Exhibit 32 is the attachment list relating to the said execution proceedings. The minor three sons of Ahmedsab referred to above, represented by their guardian Dastagir Sab filed a claim petition, Miscellaneous Case No. 195/32-33 under O. 21, R. 58, Civil P. C. stating that they had been in possession of the property as owners thereof and that the same was not liable to be attached & sold in execution of the decree obtained by the Municipality against Thaysmma who had ceased to have any interest and prayed that the attachment may be raised. The claim petition was allowed & the Municipality subsequently preferred a revision petition before this Court in C. R. P. No. 173/33-34. At that stage, a compromise was entered into between the contesting parties and the same was recorded in the following terms :
'Mr. Chinnaswami for opponents 1 to 3 represents that his clients are agreeable to pay the amount due to the Municipal Council in a month's time from to-day and that in the event of their failure to do so, this petition may be allowed and the sale of the property may proceed. Mr. S. Sreekantiah consents and it is ordered accordingly. There Will be no order as to costs.'
The minor sons who were the respondents in the above revision petition failed) to pay the amount in accordance with the terms of the compromise and consequently the property was sold in the execution proceedings and purchased by the Municipality. The minors took no further proceedings by instituting a regular suit as required under Order 21, Rule 63. within a year from the date of the order. It is argued on behalf of the respondents that the right of redemption that was vested in them was lost to them by reason of their failure to institute a regular suit within a year therefrom to get rid of the order passed in the revision petition which was clearly binding on them, and that consequently the appellant has derived no right to redeem the suit property under Ex. 13, executed in his favour by one Pasupathaiya who had purchased the right of redemption from the three sons, Amirjan, Khalandar and Nabijan, under Ex. 9, dated 24-9-1940. That a regular suit had to be filed within a year as provided for under Order 21, Rule 63 to get rid of the order passed in the claim case, admits of no argument; but Sri Krishnamurthy has strenuously urged that the consent accorded in Civil Revn. Petn. No. 173/33-34 and the order on it are void 'ab initio' as against the minor sons of Ahmedsab, i.e. Amirjan, Khalander and Wabijan, for the reason that the mandatory provisions of Order 32, Rule 7, Civil P. C. were not followed in according sanction to the said compromise. The respondents in the said revision petition were all minors represented by their guardian as is seen from the cause title of the revision petition, Ex. 7, in the case. It was the duty of the counsel appearing for respondents in the case to have represented to the Court that the compromise was beneficial to the minors who were parties to the petition. That not having been done and the Court not having expressly accorded sanction for the compromise, it cannot, by any means, be said that the order in the said petition is binding on them to any extent. It has been held by this Court in '26 Mys. C. C. B. 165 (Z4)' thus:
'If it was not sanctioned by the Court or if the sanction granted is not entered on the record of the proceedings and that the petitioner having chosen to avoid it, he is entitled to do so 'if he was a minor' ',
That there should be an express record of the sanction by the Court and that, such sanction could not be presumed, is laid down in a recent case reported in '44 Mys HCB' 454 (Z5)' thus :
'In a compromise entered into by the guardian on behalf of the minor the Court did not expressly record his leave to enter into the compromise. Held that the compromise and the entering of satisfaction in accordance with it did not bind the minor judgment-debtors ....... To say that it was sufficient to presume or even to infer from other entries in the record that the Judge in such a case had complied with the rule, although he had not expressly recorded his leave, would be running against the plain words of the rule. The introduction in the rule of the words 'expressly recorded in the proceedings' prohibits a Court from saying that a presumption or an inference that the Judge concerned gave leave is equivalent to the express recording that he has done so.'
In this case, there is no indication of the Court having sanctioned the compromise as there is no such record in express terms. If the compromise is held to be not binding upon the minors, the original order passed in Mis. Case No. 195/32-33 allowing the claim petition preferred by the three minor sons of Ahmedsab stands good so far as they are concerned and the execution proceedings by the Municipality culminating in the sale and delivery of possession of the suit schedule property cannot be said to be binding as against them. Consequently, the sale deed executed by them in favour of Pasupathaiya under Ex. 9 and the one executed by the latter in favour of the present appellant under Ex. 13 on the foot of which he seeks to redeem the suit schedule property must be held to be valid.
15. It is next submitted on behalf of the respondents that they having stepped into the shoes of the original mortgagee of the suit schedule property, viz. Davoodsab, by reason of the purchase of the mortgage right of the said property by their father in a court sale held in Execution Case No. 527/27-23, of the decree obtained by one Gaffarsab against the legal representatives of the said Davoodsab in O. S. No. 705/27-28 for recovery of the arrears of rent due to him under a registered lease deed, dated 14-5-1923. Exhibits 15 and 16 are the prohibitory orders served on Thayamma & the legal representatives of Davoodsab who were the judgment-debtors in the said execution case. Exhibit 17 is the sale certificate issued to the father of the respondents and it is seen from it that the sale of the mortgagee's rights held. on 30-1-1931 was duly confirmed on 27-11-1931. The respondents, it is represented, obtained symbolical possession of the property through Court. They subsequently filed a suit in O. S. 35 Of 37-38 on the file of the Subordinate Judge, Mysore, to enforce their right of possession of the suit property impleading the legal representatives of Davoodsab, viz. the three minor sons of Ahmadsab who were the purchasers of the equity of redemption as mentioned in the preceding paragraphs and also the tenants of Hyath Bi, as each of them was adversely claiming to be the owner of the property for himself or herself. The said suit was decreed in their favour and in execution of the said decree, they also obtained possession of the property through Court on 14-8-1941 in Execution Case No. 185/40-41. It is contended on behalf of the respondents that by virtue of the decree passed in their favour in O. S. No. 35 of 37-38 and the proceedings thereunder they became absolutely entitled to the suit property. A scrutiny of these proceedings as admitted by the parties will show that there is no substance in that contention. The decree obtained by the said Gaffarsab against the legal representatives of Davoodsab was only a money decree. It must be observed here that Amirjan, Khalander and Nabijan, the sons of the deceased Ahmed sab, who had purchased the equity of redemption of the suit schedule property in execution of the decree obtained by their father against Thayamma were not made parties to that suit. The prohibitory orders show that what was attached in execution of the decree in O. S. No. 705/27-28 was only the mortgage debt. The sale certificate, Ex. 17, also shows that the sale was in respect of the mortgagee's rights. The suit filed by the respondents in O. S. No. 35/36-3T was for recovery of possession of the suit schedule property after declaring that they were entitled to possession of the same under the mortgage deed executed by Thayamma in favour of Davoodsab. It is thus clear beyond all reasonable doubt that what was attached and sold in execution of the decree obtained by Gaffarsab was only the mortgage debt due to Davcodsab and what the respondents secured under the decree in O. S. No. 35 of 37-38 was only possession of the property in pursuance of the rights of a mortgage with possession. Neither the decree in O. S. No. 705 of 27-28 nor the one in O. S. No. 35 of 37-38 nor the proceedings thereunder affected in the least the equity of redemption vested in the three sons of Ahmedsab, firstly because they were not parties to the suit, O. S. No. 705/27-28, and they are not bound by it and secondly because the dispute in O. S. No. 35 of 37-38 was only in respect of possession of property as mortgagees and no dispute regarding the equity of redemption was involved in that suit. It, therefore, follows that the respondents have only stepped into the shoes of the original mortgagee, Davoodsab, and their right to the property has not by reason of these proceedings enlarged to any extent.
16. It is next contended for the respondents that even otherwise their mortgage right of the suit schedule property has fractioned itself into an absolute right of ownership by reason of their purchase of the suit property under Ex. 25, dated 28-1-1943. It has already been discussed above that the suit, O. S. No. 30 of 31-32, filed by the Municipality against Hyath Bi for recovery of tax and the proceedings thereunder culminating in the purchase by the Municipality of the property in the Court helps them in no way to acquire any right to the suit property for the reason that the order passed by this Court in C. B. P. No. 173/33-34 has been held to be vitiated for non-compliance with the mandatory provisions of Order 32 Rule 1, Civil P. C.
17. Conceding that the respondents did clothe themselves with some right by purchase of the suit property from the Municipality under Ex. 25, their position, at best, could be, as argued by the learned counsel for the appellant, no better than constructive trustees so fay as the appellant is concerned. The appellant relied on the express stipulation embodied in the original mortgage deed, Ex. 8 wherein it is specifically agreed that the tax due oil the suit property was payable by the mortgagee himself. Ke draws our attention to a passage at page 714 in the book on Mortgages by Jones which runs as follows :
'When the payment of the taxes is a duty on the part of the mortgagee he is like a trustee and cannot affect the right of the mortgagor by purchasing the property at a sale for such taxes. Such is his position when he has taken possession of the premises for the purpose of foreclosing his mortgage. He may pay the taxes and add the amount to the debt secured by the mortgage but he cannot acquire an adverse title by a purchase at a sale by the tax collector. Moreover, if the mortgagee has brought the tax title it is for the benefit of the mortgagor as well as for his own benefit he cannot afterwards set up against the mortgagor to defeat a redemption by him. If a mortgagee standing in the relation of mortgagee in possession acquires a tax title and after sells the property under his power of sale and becomes the purchaser he cannot set up his tax title as against the right of mortgagor which was not released in the mortgage'.
The passage at page 276 in the Law of Mortgages, Vol. I by Ghose quoted by him is also to the same effect. He also relied on a decision of this Court reported in '28 Mys CCR 232 (Z6)' which relates to
'a suit for redemption where the mortgagee denied the rights of the plaintiff to redeem on the ground that the mortgaged property was sold to one N and the defendant purchased the same from N. (In default of defendant 1 --mortgagee who was liable to pay) .......it was held that the principle of equity embodied in Section 90. Indian Trusts Act, viz. that a man is not allowed to take advantage of his own wrong, should be applied to the case, and that as soon as the property came back to the possession of defendant 1 (mortgagee) the mortgage revived and the mortgagor or his heir gains a right to redeem it any time within 60 years being the statutory period'.
(18) It was on the other hand argued for the respondents that the arrears due on the suit property related to the period prior to his coming into possession of the property, and that he was, therefore, not liable to pay the same and that his title conveyed by the sale deed. Ex. 25, is not therefore affected. There is obviously no force in this contention. He was in duty bound to safeguard the security mortgaged. If he had paid the arrears due to save the property he may, at best, claim the re-payment of that amount at the time of redemption. This contention of the appellant must, therefore, be upheld though it may be unnecessary in view of our findings in the preceding paragraphs.
19. It now remains to be seen to whatamounts besides the mortgage amount the respondents are entitled to before they are directedto be redeemed. They have claimed Rs. 1522-2-0towards costs incurred by them in the suit, O. S.No. 35 of 37-33. But the execution petition markedas Ex. 26 shows that the actual cost incurred bythem is Rs. 753-3-0. The respondents probablyhave added on to this sum the amount of mesneprofits of Rs. 720/- awarded to them in their suitas is seen from Ex. 3, the judgment in the case.They are not entitled to add on this amount tothe mortgage debt as Section 72, T. P. Act only provides for recovery of moneys spent by the mortgageefor supporting the title of the mortgagor to theproperty and also for making good his own titlethereto against the mortgagor. The only amountthat could, therefore, be allowed would be Rs-.753-370 which, according tp Ex. 26, is the actualcost incurred in their suit which they were obligedto file as their right to possession of the suitproperty was not only resisted but also challenged.They next claim Rs. 384-1-8 and Rs.77-7-0 inrespect of taxes paid for the suit house. The firstitem represents the arrears & the latter amountthe subsequent taxes as having accrued due aftersuit till payment. It is no doubt true that thereis an express stipulation in the mortgage deedthat the mortgagee himself should pay the taxespayable on the property. But having regard to thefact that the Municipality had obtained a decree forarrears of taxes due on the property long prior tothe respondents coming into the scene, it appears-to us to be just and equitable to allow the amountof arrears, via., Rs. 384-1-8 to them as they werenot in possession of the property during thatperiod and derived no benefit therefrom. Theyare not, however, entitled to the other amountdue for the subsequent period as they were obligedto pay after they got into possession. In regardto the remaining items claimed by the respondents,we are inclined to agree with the reasons andfindings of the Court below in disallowing them.(20) In the result, the appeal is allowed. Theplaintiff is entitled to redeem the property onpayment of Rs. 753-3-0 and Rs. 384-1-8 with interestat six per cent per annum from the date of the decree in the former case & the date of payment inthe latter in addition to the principal amount ofRs. 2000/- secured by the mortgage. Time for payment is six months. In the circumstances of thecase, we direct that the parties do bear their owncosts of the suit throughout.
20. Appeal allowed.