E.S. Venkataramiah, J.
1. The plaintiffs in O. S. No. 357 of 1957 on the file of the Second Munsiff, Bangalore, are the appellants in this Second Appeal. They instituted the above suit for redemption of five mortgages executed by their father Naniaiah in favour of Konda Hanumanthaiah the deceased father of defendants 1 and 2, on 10-1-1918, 26-9-1918, 8-7-1919, 20-2-1922 and 2-12-1922. Earlier Item 1 of the plaint schedule had been mortgaged on 29-5-1916 in favour of one Hanuman Singh for a sum of Rs. 100/- and that in the mortgage deed dated 20-2-1922, Konda Hanumanthaiah was asked to discharge the said mortgage and to Set possession of the property. Konda Hanumanthaiah discharged the said mortgage and got possession of Item 1 of the plaint schedule. Under the deed dated 10-1-1918. Item 2 of the suit schedule was mortgaged; under the deed dated 26-9-1918. Item 3 and a portion of survey No. 10 was mortgaged; under the deed dated 8-8-1919, a second mortgage was created on Item 2 of the suit schedule property; and under the mortgage deed dated 2-12-1922, Item 2 was again mortgaged. The total loan advanced under all these five mortgage deeds was Rs. 500/- only. That on 30-5-1953 plaintiff 1 got a notice issued to the defendants requesting them to receive the amounts due to them under the mortgages including the land revenue that had been paid by them in respect of the suit lands and to allow redemption. No reply was received by him. Hence the plaintiffs filed the above suit for redemption of the mortgages. Because they found at the time the suits was instituted that defendant 3 had been in possession of Item 3, the plaintiffs impleaded him also as defendant. Defendants 4 to 6 were impleaded as they were found to be interested in the equity of redemption.
2. Defendants 1 and 2 contended in their written statement that the plaintiffs' father had no right to mortgage She properties because even before the suit mortgages, he had sold them away to one Boregowda of Soorenahalli under a registered sale deed dated 30-8-1906 and that the said Boregowda had filed a suit for declaration of title to and possession of the suit properties in O. S. No. 134 of 1918-19 on the file of the Second Munsiff. The said suit was decreed in the trial Court and it was confirmed in appeal. R. A. No. 132 of 1922-23 and in second appeal S. A. No. 82 of 1926-27 on the file of the High Court of Mysore and that the several mortgages executed by Nanjaiah during the pendency of those proceedings were hit by the doctrine of lis pendens. It was further pleaded that the legal representatives of the said Bore Gowda sued out execution of the decree and took possession of the properties on 31-10-1928 in Ex. Case No. 395/1928-29. So. even if the deceased Nanjaiah had any right, title or interest in the suit properties, the same was extinguished by reason of the decree and the execution proceedings. They further pleaded that the legal representatives of the said Boregowda had after taking possession of the suit schedule properties through Court, sold their right under sale deed dated 29-9-1929 in favour of one Doddaiah and his nephews Kallaiah and Rangaiah. Kallaiah and Rangaiah sold their right, title and interest in the properties on 6-4-1942 in favour of the said Doddaiah and that Doddaiah had in his turn sold his right, title and interest in the suit properties in favour of defendants 1 and 2 under a registered sale deed dated 15-3-1957. It was therefore, pleaded by them that they had become the absolute owners of the suit properties and that the plaintiffs had no right, title and interest in them. The defendants pleaded in the alternative that after 31-10-1928 on which date the properties were delivered pursuant to the decree in O. S. No. 134 of 1918-19 the possession of defendants 1 and 2 became adverse to the plaintiffs and that they had perfected their title to the suit properties by adverse possession. Defendant 3 claimed that Item 3 of the plaint schedule which was in his possession, did not belong to the plaintiffs at all and that he was in possession of the same in his own right. He pleaded that the said land belonged to one Narasamma and her two sons Narasegowda and Ravanna and that he had purchased the same under a sale deed dated 4-5-1942 from them. Later on because he found that defendants 1 and 2 were in wrongful possession of the said portion, he instituted O. S. No. 36 of 1945-46 on the file of the Second Munsiff at Bangalore for possession. That suit was decreed and that he was in possession as its absolute owner. He, therefore, prayed that the suit as against him may be dismissed. Defendant 5 filed a written statement stating that the suit may be decreed as prayed for. Defendants 4 and 6 adopted the written statement filed by defendant 5. In the reply, the plaintiffs pleaded that it was not true to say that the mortgagee Konda Hanumanthaiah, father of defendants 1 and 2, was dispossessed in Ex. Case No. 395 of 1928-29 by Boregowda. On the other hand the said Konda Hanumanthaiah instituted O. S. No. 45 of 1942-43 on the file of the Second Munsiff against Doddaiah who claimed to have purchased the suit lands under sale deed dated 24-9-1929 and 6-4-1942. In that suit the mortgagee stated that he was in possession of the suit properties as a mortgagee under the father of the plaintiffs and that he had not been dispossessed in Execution Case No. 395 of 1928-29 at all. He characterised the delivery proceedings as amounting to mere paper delivery and that the possession of the properties however continued to remain with him. In the said suit. Konda Hanumanthaiah had prayed for an injunction restraining Doddaiah from interfering with his possession of the suit properties. It was, therefore, pleaded that the case of defendants 1 and 2 that in Ex. Case No. 395 of 1928-29 Konda Hanumanthaiah was dispossessed, was not true. It was urged that the possession of Konda Hanumanthaiah and after him defendants 1 and 2 of the properties, continued to be that of a mortgagee and that defendants 1 and 2 were bound to allow redemption of all the mortgages in question.
3. The trial Court after recording the evidence and hearing the parties, dismissed the suit and the appeal filed against the judgment and decree of the trial Court, was unsuccessful. The plaintiffs have, therefore, filed this second appeal.
4. In this case there is no dispute that Nanjaiah. the father of plaintiffs, executed five mortgage deeds on 10-1-1918, 26-9-1918, 8-7-1919, 20-2-1922 and 2-12-1922. The said mortgage deeds are marked as Exhibits in this case. Exhibit P-l is the mortgage deed dated 2-12-1922. Exhibit P-2 is the mortgage deed dated 26-9-1918. Exhibit P-3 is the mortgage deed dated 10-1-1918. Exhibit P-4 is the mortgage deed dated 8-9-1919 and Exhibit P-5 is the mortgage deed dated 20-2-1922- Exhibit P-8 is the certified copy of the mortgage deed dated 29-5-1915 executed by Nanjaiah in favour of Hanuman Singh. The mortgagee Konda Hanumanthaiah under Exhibits P-l to P-5 was asked to discharge the mortgage under Exhibit P-8. That Konda Hanumanthaiah got possession of the properties mortgaged under Exhibits P-l to P-5, is established by the statement of Konda Hanumanthaiah contained in Ex. P-13 which is a certified copy of the plaint in O. S. No. 45 of 1942-43 on the file of the Second Munsif at Bangalore. The said suit was instituted by Konda Hanumanthaiah for a decree for permanent injunction restraining the above mentioned Doddaiah from obstructing or interfering with his possession and peaceful enjoyment of the plaint schedule lands. He alleged in the said plaint that he was the mortgagee with possession of the lands for more than 24 years under the mortgagor Nanjaiah as per mortgage deeds dated 10-1-1918, 26-9-1918, 8-7-1919, 20-2-1922 and 2-12-1922. The plaint goes on to state that the said mortgagor Nanjaiah was the absolute owner of the suit lands and the plaintiff was in continuous and undisturbed Possession and enjoyment of the same. It was further stated that in the year 1933 the first defendant Doddaiah who had purchased the suit properties on 29-4-1929 along with two others raised a dispute about the possession of the suit land by Konda Hanumanthaiah and requested the revenue authorities to take kandayam in respect of the suit lands from him and that the revenue authorities having enquired into the matter decided that the plaintiff was in enjoyment end possession of the land, and, therefore, they rejected the prayer of Doddaiah. It was further pleaded that in spite of the fact that Doddaiah had no right whatsoever, he was with the active assistance of defendants 2 and 3 therein, obstructing the plaintiff from enjoyment of the suit lands. It was, therefore, prayed that a decree for injunction should be passed. In the course of his deposition in the said suit, O. S. No. 45 of 1942-43, which has been marked as Exhibit P-14 in this suit, Konda Hanumanthaiah stated that he was in possession of the suit lands under the five mortgage deeds executed by Nanjaiah in his favour and that before him Nanjaiah was in possession of the lands from the time of his father i.e. for about 20 to 25 years prior to the mortgage in his favour. He denied in the course of his cross-examination knowledge about the institution of O. S. 134/1918-19 by Doddaiah against the mortgagor Nanjaiah, but he however admitted that he had been examined in that case as a witness and that he had produced one of the mortgage deeds in that suit as an Exhibit. He however stated that he had no knowledge of the relief claimed in that suit He denied that Doddaiah got possession of the suit properties at any time. The said suit was decreed by the trial Court. The only issue framed in that suit as can be gathered from Exhibit P-15 certified copy of the Judgment in Second Appeal No. 183 of 1944-45 which arose out of O. S. No. 45/1942-43 referred to above, was whether the plaintiff Konda Hanumanthaiah the mortgagee under Exhibits P-l to P-5 was in possession of the suit lands and was entitled to permanent injunction prayed for. On that issue, both the trial Court and the first appellate court gave concurrent findings and decreed the suit In the second appeal, the judgments and decrees of the two courts below, were affirmed. The contention urged by Doddaiah, the appellant in S. A. No. 183 of 1944-45 who was defendant I in O. S. No. 45 of 1942-43, namely. that he had taken delivery of the properties through court in execution of the decree passed in O. S. No. 134 of 1918-19 which he had instituted against the mortgagor Nanjaiah, was negatived by the High Court.
5. There is no evidence in this case to show that the possession of the mortgaged properties by Konda Hanumanthaiah or his sons defendants 1 and 2, was ever disturbed on any other occasion. The only allegation in the written statement of defendants 1 and 2 in that behalf is that the possession of the mortgagee was disturbed by the decree-holder in O. S. No. 134 of 1918-19 in Ex. Case No. 395 of 1928-29. It has to be held in view of the contents of Exhibits P-13, P-14 and P-15, referred to above, that the same is not established. On the contrary, what I find from these Exhibits is that the mortgagee Konda Hanumanthaiah and his sons defendants 1 and 2 were able to retain possession of the suit properties which had been mortgaged under Exhibits P-l to P-5 on the basis of their right under the mortgage deeds Exhibits P-l to P-5. It is also clear from these documents that the mortgagee and his sons defendants 1 and 2 have been in continuous possession of the mortgaged properties from the time they were mortgaged till the present suit was instituted.
6. The next question is whether it is permissible for defendants 1 and 2 to deny the title of the mortgagor. A mortgagee is precluded from denying the title of the mortgagor to mortgage the property during the pendency of the mortgage. But this rule would not apply when a mortgagee in possession is evicted by a person having paramount title. In the instant case, the contention of defendants 1 and 2 was that the mortgagor Nanjaiah had transferred the suit properties in favour of Boregowda under a registered sale deed dated 30-8-1906 and that after the said sale deed, he had no right, title and interest at all in the suit properties. It was further stated that on the basis of the said sale deed, Boregowda had instituted O. S. No. 134 of 1918-19 against the mortgagor and that the said suit was decreed and in execution of the decree passed therein, in Ex. Case No. 395 of 1928-29 the Properties were delivered to the decree-holder. It was, therefore, pleaded that whatever title which the mortgagor possessed was lost subsequent to the date of the mortgage. It was argued that even though the mortgagee may not be able to deny the title of the mortgagor at the commencement of the mortgage, it would be open to him to deny his title if the mortgagee was dispossessed subsequent to the date of the mortgage by a stranger claiming under title paramount. In support of the said contention, reliance was placed on a decision of the former Mysore High Court in Fakruddin Khan v. Abdul Kareem. ((1951) 29 Mys LJ 5). Sri S. L. Simha, the learned counsel for the appellants however contended that in this case, admittedly the mortgagee Konda Hanumanthaiah and defendants 1 and 2 were never in fact dispossessed by the decree-holder in O. S. No. 134 of 1918-19. and. therefore, the mortgagee or persons claiming under him could not at all contend that the mortgagor had no right to redeem. He urged that the above decision was therefore distinguishable from the present case. I think Sri Simha is right in making the said submission. Similarly the decision in S. Chokkalingam Pillai v. M. S. S. M. Ganesa Shanmugasundaram Pillai. : AIR1951Mad284 is not of much assistance to the defendants 1 and 2. In that case it was held that, 'in order to constitute an eviction by a person claiming under paramount title, it is not necessary that the tenant should be put out of possession or ejectment should be brought; a threat of eviction is sufficient, and if the tenant, in consequence of such threat, attars to the claimant, he can set this up as an eviction by way of defence to en action for rent, subject to his proving the evictor's title .....'. In this case, the mortgagee instead of either attorning to or accepting the title of Doddaiah who was claiming under paramount title on the basis of a decree passed against the mortgagor, instituted a suit in O. S. No. 45 of 1942-43 as per Exhibit P-13 and was able to obtain a decree in S. A. No. 183 of 1944-45, as per Ex. P-15, on the basis that the delivery proceedings in Ex. Case No. 395 of 1928-29 resulted in mere paper delivery and that he was entitled to remain in possession of the properties on the basis of his title under the mortgage deeds Exhibits P-l to P-5. It cannot, therefore, be concluded that there has been any dispossession of the mortgagee by a person claiming under paramount title. The decision in K. S. M. Guruswami Nadar v. N. G. Ranganathan, : AIR1954Mad402 which lays down the same principle is also of no avail to defendants 1 and 2.
7. From the foregoing it is clear that the mortgagee and his sons defendants 1 and 2 have been in possession all along as mortgagees only, and, therefore, their possession should be construed as being adverse to Boregowda, the decree-holder in O. S. No. 134 of 1918-19 and persons claiming under him all along. Even granting that Boregowda had title to the suit properties, the mortgagee's possession being adverse to him for more than twelve years, it should be held that Boregowda and persons claiming under him lost their title to the suit properties by adverse possession. It follows that under the sale deed dated 15-3-1957 executed by Doddaiah, who claimed under the decree-holder in O. S. No. 134 of 1918-19, defendants 1 and 2 could not acquire any title because by 1957 more than twelve years had elapsed from 31-10-1928 on which date the decree-holder in O. S. No. 134 of 1918-19 claimed to have taken possession of the suit properties although in fact he did not get actual possession of the same. As already stated the mortgagee and defendants 1 and 2 were in possession all along in defiance of the title of Doddaiah and his predecessors-in-interest. Hence. I am of the opinion that under the sale deed dated 15-3-1957 no title was acquired by defendants 1 and 2 because the transferor himself had no subsisting title by then.
8. It was argued on behalf of defendants 1 and 2 that but for the suit instituted by the mortgagee in O. S. No. 45 of 1942-43. he would have lost possession of the suit properties and the mortgagor or persons claiming under him also would not have been able to file a suit for redemption. It was urged that the plaintiffs cannot therefore be permitted to take advantage of the decree which the mortgagee obtained in O. S. No. 45 of 1942-43. I find it difficult to accept the above contention. The true legal position is as found in Section 90 of the Indian Trusts Act, which reads as follows:--
'Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such, advantage.'
The usufructuary mortgagee in this case, as already found, was able to maintain possession of the suit properties on the basis of the title derived by him under the mortgage deeds, and, therefore he is liable in law to hold the mortgaged property for the benefit of the mortgagor. He cannot be permitted to make use of his position as a mortgagee for depriving the mortgagor of the equity of redemption. The same is the principle underlying in the legal maxim 'once a mortgage, always a mortgage'. It is the right of a mortgagor on redemption to get back the subject of the mortgage and to hold and enjoy the same as he was entitled to hold and enjoy before the mortgage. Unless the right conferred on the mortgagor under Section 60 of the Transfer of Property Act has been extinguished by the act of parties or by a decree of a court, the mortgagee cannot prevent the mortgagor from securing a decree for redemption. I am of the opinion that in the instant case, defendants 1 and 2 have not been able to establish any tenable ground to deprive the mortgagor or his successors in interest of their right to redeem the mortgages. The courts below were wrong in coming to the conclusion that the plaintiffs had lost their right to redeem the properties by virtue of the proceedings in O. S. No. 134 of 1918-19 and Ex. Case No. 395 of 1928-29.
9. I hold that the plaintiffs are entitled to a decree for redemption. But a preliminary decree cannot be straightway passed in this appeal.
10. The plaintiffs in their plaint have prayed for a preliminary decree to be passed directing defendants 1 and 2 to receive a sum of Rs. 1,075/- or any other amount that may be found due on taking accounts. Defendants 1 and 2 in the course of their written statement have stated that the plaintiffs were not liable to get a larger sum in the event of a decree for redemption being passed. They have pleaded in the written statement that they had spent more than Rupees 1,000/- for protecting their possession and in defending the case against the real owner Doddaiah. It was also pleaded by them that a sum of Rs. 4,000/- had been spent by them for improvements over the suit lands. On these pleadings, issues Nos. 9. 10, 11 and 12 were framed by the trial Court. But in view of its decision that the suit was not maintainable on the ground that the plaintiffs had lost their equity of redemption, the trial Court omitted to record its finding on those issues. The lower Appellate Court has also not recorded its finding on these issues. In the above circumstances, it is not possible for this Court to determine the amount payable by the plaintiffs to defendants 1 and 2 towards the redemption of the mortgages in question. It is, therefore, necessary to remand this case to the trial Court to record its finding on issues Nos. 9 to 12 and to pass a preliminary decree in accordance with law.
11. So far as defendant 3 is concerned, the lower appellate Court was of the opinion that there was no evidence to show that defendants 1 and 2 and their father Konda Hanumanthaiah were ever in possession of Item 3 of the plaint schedule purchased by defendant 3 under Exhibit F-5. It therefore, reversed the finding recorded on the above question by the trial Court and on that ground held that the suit claim as against defendant 3 had not been established by the plaintiffs. The case as against defendant 3 is mainly dependent upon the facts and the lower appellate Court has found that the land in possession of defendant 3, was never in the possession of the mortgagee. In these circumstances. the suit against defendant 3 has to be dismissed.
12. In the result, the judgments and decrees of both the courts below are set aside in so far as they relate to defendants 1 and 2 and the case is remanded to the trial Court to dispose of the case in accordance with the directions given above. The suit as against defendant No. 3 is dismissed. Defendants 1 and 2 will pay the costs of the plaintiffs in all the three courts. Defendant 3 shall bear Ms costs in all the three courts.
13. The appeal is accordingly disposed of.