1. The contention urged before us on the defendant's behalf raises three main points for determination:
1. Whether the defendant was entitled to claim interest on the mortgage-money for the period between 30th August 1882, the date of the mortgage, and the 23rd August 1883, when he enforced his pre-emptive decree by depositing Rs. 699, the principal consideration-money of the conditional pale in respect of which he enforced his pre-emption.
2. Whether the defendant was entitled to claim any interest after the 21st August 1884, when the deposit by the plaintiff, under Section 83 of the Transfer of Property Act, amounted to Rs. 743.
3. Whether, under the circumstances of this case, the defendant was entitled to costs.
4. I will dispose of each of these points in the order in which I have mentioned them. The first of these questions depends upon the determination of a very important point of the law of pre-emption. That a successful pre-emptor stands in the shoes of the original vendee in respect of all the rights and obligations arising from the sale under which he has derived his title, is a question which stands upon an undoubted basis, for the right of pre-emption is nothing more or less than the right of substitution. This was pointed out by me at considerable length in Gobind Dayal v. Inayatullah I.L.R. 7 All. 775 where the Full Bench of this Court generally accepted nay conclusions as to the nature of the pre-emptive right. This, however, is not a point which is contested on either side in the argument of the learned pleaders for the parties. Alt that the learned pleader for the appellant contends for here is, that his client, having succeeded to, or rather been substituted for, the original conditional vendee, Har Prasad, is entitled to claim the benefit of all the conditions of the mortgage, and is, therefore, entitled to claim interest even for the period antecedent to the 23rd August 1883, when he enforced his pre-emptive decree, by deposit of the consideration of the conditional sale under the decree of the 5th February 1883. I am of opinion that this contention is wholly unsound. It is perfectly true that a successful pre-emptor becomes substituted for the original transferee, and thus becomes entitled to the benefits of the transfer. But it is equally true, and stands to reason, that those benefits cannot be claimed for any period antecedent to each substitution itself. The right of pre-emption as based upon the wajib-ul-arz partakes of the nature of those obligations which fall short of an interest in immoveable property, though they are annexed to the ownership of such property. The nature of such obligations is well described in Section 40 of the Transfer of Property Act, which I refer to only by way of analogical comparison. A pre-emptor, therefore, before his pre-emption is actually enforced, possesses no such right in the subject of preemption as would entitle him to any benefits arising out of the property, which he is only entitled to take by substitution, but has not yet actually taken. On the other hand, the original vendee cannot, whilst he is in possession, be regarded as a trespasser, who would have no right to enjoy the usufruct of the property which he has purchased, nor would it be equitable to hold that the pre-emptor, before he has actually paid the price, should be entitled to the profits of the property, which he can take only upon duly making such payment.
5. This view of the law is supported by some cases to be found in the reports. There is a very old ruling--Uodan Singh v. Muneri Khan 2 Cal. S.D.A. Rep. 85 where it was held that if A transfer lands to B by sale, and G afterwards come forward and establish his right of shut or preemption, he will be entitled to the lands at the price paid for them by B. who will be compelled to refund the profit accrued during the period of his possession to 0', receiving himself the purchase-money back from A. That was a case decided so long ago as 1813, and seems to have depended entirely upon the Muhammadan law of preemption. The judgment, however, contains no authority for the rule there laid down; and there can be no doubt that the ruling was erroneous, being opposed to the most authoritative texts of the Muhammadan law itself. Such indeed seems to be the view taken by the Sudder Court of these Provinces in Manick Chand v. Rameshur Roe N.W.P.S.D.A. Rep. 1865 vol. ii. 171 which was a suit based upon the wajib-ul-arz, and where the learned Judges held that the 'pre-emptor could have no preferential right till he had tendered the full price, and therefore the defendant's intermediate possession could not be regarded as illegal.' This ruling was followed by this Court in Baldeo Pershad v. Mohan N.W.P.H.C. Rep. 1866 Rev. Ap. 30 where the learned Judges, after referring to the rule of Muhammadan law of pre-emption, held it to be equitable, and then went on to say: 'The purchaser has in most instances paid the purchase-money; is he to lose all interest and profits because, at some subsequent time, the contingency occurs that a pre-emptor claims and exercises his right of preemption and is the pre-emptor, who has kept his money in his pocket till it suited his purpose to exercise his right, to obtain profit, which will be the greater in proportion to his delay? '
6. The same rule was laid down by Straight, J., in Ajudhia v. Baldeo Singh I.L.R. 7 All. 674 which is the latest case upon the subject. I entirely concur in the principle upon which these rulings proceed; and if the exigencies of this case needed it, I would, by reference to the original texts of the Muhammadan law, have shown that the principle is a necessary consequence of the very nature and incidents of the right of pre-emption itself.
6. Applying the principle to this case, it seems to me perfectly clear that till the 23rd August 1883, when the defendant enforced his pre-emptive decree by depositing Rs. 699--the consideration of the conditional sale of the 30th August 1882--he had no such interest in the subject of pre-emption as would entitle him to any benefits arising therefrom. And it follows that my answer to the first question in the case must be that the defendant is not entitled to claim any interest on the mortgage-money for the period antecedent to the 23rd August 1883. This view, however, raises a subsidiary question, namely, that if the defendant is not entitled to interest for that period, who else is entitled to it? This is a question which we are not bound to determine in this case, but I think I may safely say, as a necessary consequence of the ratio decidendi adopted by me, that the proper person entitled to receive the interest for that period was Har Prasad, in whose favour the bye-bil-wafa mortgage of the 30th August 1882, was originally executed, and who was dispossessed under the defendant's pre-emptive decree; and I think I may add that in passing that decree, the Court should have allowed the amount of interest above mentioned' in addition to the principal mortgage-money. This view is based upon the same principle as my ruling in Ashik Ali v. Mathura Kandu I.L.R. 5 All. 187 where it was held that the pre-emptor, in the case of a mortgage by conditional sale which has become absolute, is bound to pay as the price of the property the entire amount due on such mortgage at the time it became absolute. Here the 'price' which should have been allowed to Har Prasad under the decree of the 5th February 1883, should have been the principal mortgage-money, plus such amount of interest as might have been due on the mortgage up to the period fixed by the Court for enforcement of the pre-emptive decree. That decree, having now become final, cannot of course be interfered with in this case but its effect was to enable the defendant to pre-empt on payment of less money than he was entitled to. And I have no doubt that his present claim for interest antecedent to the 23rd August 1883, when he executed the decree, is wholly unconscionable and opposed to equity.
8. The next question in the case is a very simple one, because the rule contained in Section 84 of the Transfer of Property Act (IV of 1882) furnishes a clear guidance. The section says that when a mortgagor has duly made deposit under the preceding section of all that is due on the mortgage, the interest on the mortgage money is to cease. Here the plaintiff deposited the principal sum of the mortgage-money on the 6th June 1884, but that deposit was clearly inadequate and would scarcely entitle him to the benefit of Section 84 of the Act, even pro tanto. I will, however, not determine this point, because it is not raised here, and the plaintiff himself made a further deposit of Rs. 44 on account of interest on the 21st August 1884, thus making the whole deposit amount to Rs. 743, which has been found by the Court below to be all that was due on the mortgage on that date, and of which the defendant had due notice. The amount so deposited of course left out of account the interest for the period antecedent to the 23rd August 1883, and to which, as I have already shown, the defendant was not entitled. The Courts below were, therefore, in my opinion, right in not allowing interest to the defendant after the plaintiff had, with due knowledge of the defendant, deposited the whole money due on the mortgage to the defendant. And I may also add, with reference to a subsidiary question in the case, that the Courts below did not act rightly in rendering the decree subject to the condition that the defendant was not to be evicted till the crops he had sown were cut. The rule applicable to such cases is clearly enunciated in the last paragraph of Section 51 of the Transfer of Property Act, which creates no bar to eviction in such a case, but only lays down that the transferee is entitled to the crops sown by him, and to free ingress and egress to gather and carry them. The decree in this case should have been framed accordingly, but I need say nothing more about the matter, because that part of the decree has not been made the subject of complaint before us by the plaintiff-respondent.
9. Then as to the question of costs, which has been made the subject of a separate ground of appeal by the defendant-appellant before us. Section 220 of the Civil Procedure Code gives ample power and discretion to the Court in connection with costs, and in the present case the defendant, having all along acted wrongly in declining to accept the plaintiff's deposit, and in giving up-possession to him, was properly made liable for the plaintiff's costs by the Courts below.
10. I would dismiss this appeal with costs.
11. I concur in the proposed order.