1. The facta of this case are simple, and may be briefly stated for the purpose of disposing of this appeal. On the 27th August 1883, Musammat Bibi Makundi Dei and Bishambhar Nath executed a mortgage-deed, whereby they mortgaged the property now in suit, to Dhani Ram and Chakkhan Lal for a sum of Rs. 3,000, and the mortgage was of a usufructuary character. Among the covenants contained in the mortgage-deed was the following:
At the time of redemption, we shall pay along with the mortgage-money whatever amount of arrears of rent may be found due from tenants at that time. The mortgagees shall, to the best of their abilities, take care of the fruitful and unfruitful trees.
2. On the same date the aforesaid Bibi Makundi Dei and Bishambhar Nath executed another usufructuary mortgage-deed in favour of the same defendants for a sum of Rs. 5,000, under exactly the same conditions, including the covenant as to payment for arrears of rent which I have already above-mentioned.
3. On the 24th March 1886, the aforesaid mortgagors, Bibi Makund Dei and Bishambhar Nath, executed another usufructuary mortgage-deed in favour of the present plaintiffs, Lala Girdhar Lal, Shigopal and Radha Kishen, for a sum of Rs. 15,000, entitling the second mortgagees to possession of the property in suit.
4. These second mortgagees have come into Court in this case with the object of redeeming the two mortgages of the 27th August 1883, and their claim as such is maintainable, because they are puisne incumbrancers seeking to redeem an earlier incumbrance.
5. The suit was resisted by the first mortgagees upon various grounds; but those which we have to consider in connection with this appeal are that over and above the principal sum of Rs. 8,000 which formed the consideration of the two mortgages of even date, namely, the 27th August 1883, a sum of about Rs. 4,000 was due to the mortgagees, and that without the payment of such sum no redemption could take place.
6. The Court of First Instance in dealing with this litigation has decreed the claim for redemption, holding that besides the principal sum of mortgage-money of Rs. 8,000 which had already been deposited by the plaintiffs under the special provisions of the Transfer of Property Act, the sum of Rs. 498-15-9 was still due under the two mortgages of the 27th August 1883. This sum consisted of four items, which were the following:
Rs. a. p.
1. Arrears for 1292 and 1293 F. on account of
mauza Ataus ... ... ... 165 3 6
2. Arrears for 1292 and 1293 F. on account of
mauza Khaki ... ... ... 122 2 0
3. Arrears for 1293 F. on account of mauza
Khutwari ... ... ... 68 1 9
4. Government Revenue for the village ... 143 8 6
Total Rs. ... 498 15 9
7. The lower Court upon this finding held that before the plaintiffs could sue for redemption as puisne mortgagees they were bound to pay up not only the principal sum of Rs. 8,000, but also this additional sum of Rs. 498-15-9 which I have mentioned above; and that Court also directed that the expenses incurred by the plaintiffs should be recovered from the defendants.
8. From this decree this first appeal has been preferred by the plaintiffs; and the main contention which has been pressed upon us by Mr. Banerji is that the decree of the lower Court is wrong in so far as it renders the decree for redemption subject to the payment of the aforesaid sum of Rs. 498-15-9. In supporting the appeal the learned Counsel relies upon the terms of the mortgages of the 27th August 1883, and he contends that inasmuch as those mortgages did not mention anything expressly as to the payment of any sum of money due over and above Rs. 8,000, which was the amount of the principal mortgage-money, therefore the payment of this additional sum could not be made a condition precedent to a decree for redemption.
9. I am of opinion that this contention is unsound. In the first place, so far as the first three items above mentioned by me are concerned, there is a distinct clause in the mortgages of the 27th August 1883, which entitles the mortgagees to claim the arrears of rent as a part and parcel of the mortgage-money, or, to say the least, such arrears of rent (to use the words of the deed itself), as would be found due from tenants at that time, became in fact part and parcel of the mortgage-money itself, and the decree of the Court below was sound.
10. As to the 4th item, the Government revenue amounting to Rs. 143-8-6, it is true that this sum was a sum paid by the mortgagees in respect of arrears of revenue antecedent to the 27th August 1883, but the revenue fell due after this mortgage. It is clear that unless this revenue was duly paid not only would the mortgagees lose their rights but the mortgagors themselves would also cease to have any right in the property; because arrears of revenue may result in a sale such as would put an end to all the rights, not only of the first mortgagees, as well as of the second mortgagees, but also to the mortgagors rights. Under these circumstances, though the terms of the mortgage-deed of the 27th August 1883 are silent upon the point, yet the general law upon which the doctrine of salvage and subrogation proceeds, and the principles, of which have been uniformly adopted by the Courts of India, lays down that persons in the position of the present defendants as mortgagees in possession are entitled to claim that sum before the property which they saved from sale for arrears of revenue, could be redeemed. Such a right no doubt cannot be exercised by a person not interested in the property. But here there is no question that these two mortgages gave to the defendants in this action such interest in the property as would entitle them to spend the money to save that property.
11. It is not necessary to decide whether this particular case is governed by the specific rules contained in the Transfer of Property Act, because I am of opinion that the rules contained in Section 72 of that enactment only reproduce the doctrines which the Courts of justice in India have uniformly adopted, and it reproduces the older law. Clause (6) of Section 72, read with the earlier part of the section, enacts: 'When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property, he may spend such money as is necessary-- (b) for its preservation from destruction, forfeiture or sale'; and the antepenultimate paragraph of that section goes on to say he 'may, in the absence of a contract to the contrary, add such money to the principal money, at the rate of interest payable on the principal, and where no such rate is fixed, at the rate of 9 per cent, per annum.' So far as the question of the rate of interest is concerned, it is not necessary to determine it; because no interest is claimed upon Rs. 143-8-6 paid as arrears of revenue. But I hold that the principle to which I have alluded entitles the defendants-mortgagees to make that a part and parcel of the mortgage-money, the payment whereof should be a condition precedent before they are ousted from the mortgaged property.
12. Under these circumstances I am of opinion that this appeal No. 101 of 1887 fails and should be dismissed.
13. (The learned Judge then proceeded to dispose of the connected appeal, preferred by the defendants, and to dismiss the same, ordering that both appeals. should be dismissed without costs of the High Court.)
14. I entirely concur.