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Thakur Jaikaran Singh and ors. Vs. Sheo Kumar Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All747; 103Ind.Cas.370
AppellantThakur Jaikaran Singh and ors.
RespondentSheo Kumar Singh and anr.
Excerpt:
- .....the possession of the mortgagor. in 1894 he mortgaged the entire holding for a sum of rs. 1,352 to nand kumar. he left out of the mortgage money rs. 272 for payment of the first mortgage in 1302 fasli, and rs. 550 for payment of the second mortgage in 1306 fasli. it was agreed between the mortgagor and the mortgagee. nand kumar, that the latter should redeem the prior mortgages and after paying the rent due to the zamindar should appropriate the profits in lieu of interest. it is quite clear that if all the parties had stuck to their agreements, the tenant mortgagor would not have been liable to pay any rent whatsoever after the year 1894. the first two mortgagees were liable to pay rent in proportion to the areas in their possession and the remainder was mortgaged to nand kumar who.....
Judgment:

Sulaiman, J.

1. This is a defendant's appeal arising out of a suit for redemption. The plaintiff's predecessor, Ram Kumar, made three usufructuary mortgages of his fixed rate tenancy in succession. In April 1888, he mortgaged about 6 bighas and odd to Hakim Singh for Rs. 272 which was redeemable in 1302 Fasli. In November 1888, he mortgaged another 8 bighas and odd of his fixed rate tenancy to Sheo Mangal for Rs. 550, which was redeemable in 1306 Fasli. About two bighas and odd of the holding still remained in the possession of the mortgagor. In 1894 he mortgaged the entire holding for a sum of Rs. 1,352 to Nand Kumar. He left out of the mortgage money Rs. 272 for payment of the first mortgage in 1302 Fasli, and Rs. 550 for payment of the second mortgage in 1306 Fasli. It was agreed between the mortgagor and the mortgagee. Nand Kumar, that the latter should redeem the prior mortgages and after paying the rent due to the zamindar should appropriate the profits in lieu of interest. It is quite clear that if all the parties had stuck to their agreements, the tenant mortgagor would not have been liable to pay any rent whatsoever after the year 1894. The first two mortgagees were liable to pay rent in proportion to the areas in their possession and the remainder was mortgaged to Nand Kumar who became liable to pay rent in proportion. It is also apparent that if Nand Kumar had redeemed Hakim and Sheo Mangal, he would have obtained possession of the entire holding and would have paid the entire rent to the zamindar. In either case, the tenant mortgagor after the mortgage of 1894, was relieved of his duty to pay any rent to the zamindar, though of course as regards the zamindar his liability to him in the eye of the law remained.

2. Default was undoubtedly made by all the three mortgagees and the zamindar brought a suit for arrears of rent of 1304, 1305 and 1306 and a part of 1307 Fasli. He impleaded not only the tenant mortgagor, but all the three mortgagees and the revenue Court passed a decree against all of them. It made the tenant and the first two mortgagees liable for rent up to 1306 Fasli, and made the mortgagor and the first and the third mortgagee liable for the rent for 1307 Fasli. The fact was that in Jeth 1306 Fasli Nand Kumar the third mortgagee, redeemed the second mortgage in favour of Sheo Mangal Sheo Mangal was thus not made liable for any part of the rent for 1307 Fasli.

3. About Rs. 80 only were paid in satisfaction of the decree and for the balance the decree was executed. At first the area in the possession of Hakim Singh was put up for sale and purchased by a man named Ajodhiya, who was a servant of Nand Kumar. Hakim Singh put in an objection that he had paid his share of the decree and that the sale had been brought about by Nand Kumar in collusion with qurq-amin. In the meantime Ram Kumar died. The first sale was actually set aside. Subsequently the whole of the tenancy was put up for sale and purchased in the name of Ram Autar. Both the Courts below have found that this man was a cart driver of the mortgagee Nand Kumar, and that the purchase by Ram Autar was in fact benami for Nand Kumar. In fact subsequently when Nand Kumar, died, his widow transferred the property to the heirs of Nand Kumar. This sale was duly confirmed.

4. The heirs of the mortgagor, Ram Kumar, have brought the present suit for redemption against the heirs of the third mortgagee Nand Kumar. Both the Courts below have decreed the claim. The defendants contend that inasmuch as the sale of the equity of redemption was effected and confirmed, no right vests in the heirs of Ram Kumar and no suit for redemption is maintainable. The argument on their behalf is that the auction sale not having been set aside, it cannot now be questioned, and the defendants must be deemed to have acquired the rights of the mortgagor, absolutely.

5. In our opinion, the mortgagor, Ram Kumar, was in equity not liable to pay rent to the zamindar when he had made the three mortgages and contracted with these mortgagees that they would pay rent direct to the zamindar. The default, if any, was entirely that of the mortgagees. We have already remarked, as has been actually found by the first Court, that Hakim Singh had paid his quota of the decretal amount. There was, therefore, no longer any default by Hakim Singh. Even if there had been default by Hakim Singh, we would still hold that it being the duty of Nand Kumar to redeem Hakim Singh and get into possession and pay rent, Nand Kumar would also be responsible for any arrears of rent that may be due from Hakim Singh. This must be the true position as against the mortgagor, Ram Kumar.

6. As regards Sheo Mangal Singh, it was again the duty of Nand Kumar to redeem him to pay rent to the zamindar. Nand Kumar did actually redeem Sheo Mangal in Jeth 1206 Fasli. There is no direct evidence on the record to show under what terms the redemption took place, but we are entitled to presume that all accounts were settled between the parties and that after Sheo Mangal was redeemed, Nand Kumar stepped into his shoes and undertook all liabilities. That explains why the revenue Court did not make Sheo Mangal liable for any rent for the subsequent period of 1807 Fasli. Although, therefore, the zamindar had obtained a decree jointly against his tenant and his mortgagees, it is apparent that in equity the mortgagor was not really liable, and that if he were made to pay nothing to the zamindar, he would have equities against his mortgagees who had in fact committed default. A wrong was, therefore, committed by Nand Kumar admittedly as regards part of the decree, and in our opinion as regards the whole amount due, and it was in consequence of that wrong that the tenancy was put up for sale and sold. Fortunately for the mortgagor the property was actually purchased by the mortgagee himself who had committed the wrong.

7. The question before us now is whether the heirs of the mortgagor can still claim a right to redeem the property. Technically speaking their property has been sold at auction, but in equity it was sold on account of the wrong committed by the very person who has purchased the property. In the case of Nawab Sidhee Nuzur Ally Khan v. Raja Ojoodhyaram Khan [1863-66] 10 M. I. A. 540, their Lordships of the Privy Council held that a mortgagee who had wilfully suffered an estate to fall into arrears of Government revenue and then had entered into an agreement with another person to bid for the estate when sold at auction, was estopped from saying that the equity of redemption did not subsist. The principle underlying that case was followed by a Bench of the Bombay High Court in the case of Kalappa Bin Giriappa v. Shaivaya Bin Shivlingaya [1896] 20 Bom. 492., where also when a mortgaged property was sold at a Government sale for arrears of revenue owing to the mortgagee's default, it was held that it did not affect the mortgagor's right to redeem. The same principle was adopted by the same High Court in the case of Babaji v. Magniram [1897] 21 Bom. 396. It seems to us that these cases lay down a sound principle of law which prevent a fraud being practised on innocent parties. If property is sold owing to the wrongful act and default of the mortgagee himself, he cannot be allowed to claim it on the ground of his own wrong, for no cause of action can arise out of the wrong. In our opinion, the mortgagee undoubtedly committed a breach of his contract when he made default in paying the rent due to the zamindar. He cannot, therefore, be allowed to gain advantage out of his own breach of that contract.

8. We accordingly uphold the decree of the Courts below and dismiss the appeal with costs.


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