1. This is an appeal by defendant 1 from the decree passed by the learned Additional Subordinate Judge of Benares on appeal from that of a Munsif of that district in a suit brought by the plaintiff-respondent for recovery of possession of a bungalow situate in Moghal Sarai, offering to pay any sum of money which defendant 1 may be found equitably entitled to. The defendant-appellant obtained, possession of the bungalow in dispute under a mortgage deed, dated 26th March 1912, executed by Mt. Ram Dulari, defendant 3, mother of the plaintiff, who was then a minor, for a sum of Rs. 1,400. It is not disputed that Mt. Ram Dulari was the certificated guardian of the plaintiff's person and property and that she executed the aforesaid usufructuary mortgage-deed without previously obtaining the permission of the District Judge under Section 29, Guardians and Wards Act. The result is that the mortgage is voidable at the option of the plaintiff-respondent : vide Section 30, Guardians and Wards Act.
2. The defendant-appellant has been in possession ever since the date of the mortgage and has erected a number of new buildings in the compound of the bungalow as it was at the time of the mortgage. The total cost of these constructions is alleged by the defendant to be Rs. 11,621, which he claims over and above the principal sum due under the mortgage deed. He also claims Rs. 13,836 interest on the outlay at the rate of 2 per cent per mensem in terms of a stipulation entered in the mortgage deed which permits the mortgagee to effect repairs of the mortgaged premises and to make such new constructions as he liked at his own expense, and entitles the mortgagee to recover all the sums thus spent by him with interest at that rate at the time of redemption. Another small amount claimed by the mortgagee is a sum of Rs. 168-7-0, being the revenue paid in respect of the site. The total sum which according to the defendant, is payable by the plaintiff for recovery of possession of the property in dispute is Rs. 27,025-8-0.
3. The Court of first instance decreed possession to the plaintiff-respondent on condition of payment by him of the round sum of Rs. 12,000 which represents Rs. 1,138 out of the principal sum of Rs. 1,400 advanced under the mortgage deed, being the amount spent in discharge of a debt due from the plaintiff's father, and Rs. 11,621, the cost of new constructions made by the mortgagee. The view of the trial Court is based on Section 63, T. P. Act, under which a mortgagee is entitled to costs of such improvements as are not separable from the property originally mortgaged. The lower appellate Court has differed from that view and held that the mortgage being voidable at the option of the plaintiff-respondent, the defendant-appellant is entitled to no more than the sum of Rs. 1,138-9-0 out of the consideration of Rs. .1,400, together with Rs. 237 spent by the mortgagee on necessary repairs of the bungalow mortgaged. As regards newly added buildings, the learned Additional Subordinate Judge is of opinion that the mortgagee cannot insist on payment of what he has spent on those constructions under any rule of law. Accordingly he passed a decree in favour of the plaintiff-respondent on payment of Rs. 1,375-90 giving liberty to the defendant-appellant to remove the materials of the buildings made by him in the compound of the bungalow in dispute.
4. It has been argued by the learned advocate for the appellant that he is entitled to recover what he has spent on erecting new buildings in the compound of the bungalow, which has been considerably improved by that outlay and the plaintiff-respondent will have the benefit of such new buildings. Various sections were referred to in course of the argument which, according to the appellant's contention, entitled him to that relief. We are however of opinion that none of those sections is in terms applicable. Sections 63 and 72, T. P. Act, were rightly held by the lower appellate Court to be inapplicable, and reliance has not been placed on them before us for the obvious reason, that the plaintiff-respondent being absolutely entitled to avoid the mortgage deed in question and the deed having been declared to be void as against him, the case cannot be approached on the supposition that the relationship of mortgagor and mortgagee ever existed between the parties. Section 51 of the same Act has been founded on in support of the argument that the improvements have been made by the defendant-appellant in good faith, and that he is entitled to compensation for such improvements before he is evicted from the property in dispute. We are clearly of opinion that that section cannot be applied to a case where the party invoking its aid claimed to be in possession as mortgagee and could not have believed ' in good faith that he is absolutely entitled thereto.' This requirement of the section having been pointed out to the learned advocate for the appellant he rested his contention on the ground that that section is only illustrative and is not exhaustive. On that supposition he pressed for the extension of the principle underlying that section to the case of a mortgagee. We are unble to give effect to this contention. It is true a plaintiff seeking to recover possession of property by avoidance of a transfer may be put on terms by the Court whose aid he seeks; but the Court can only impose conditions of an equitable nature.
5. We are not satisfied that in making valuable constructions, which the defendant-appellant did, he was actuated by good faith. The terms of the mortgage deed which he obtained from the plaintiff's guardian, who is a pardanashin lady, are of a very onerous character. The value of the bungalow is estimated to be Rs. 1,659, and having regard to the means of the plaintiff he could not have expected him to be able to pay on redemption all that he chose to spend on it. The rate of interest to which he obtained the assent of the plaintiff's guardian, viz. 2 per cent per mensem, payable on the outlay at the time of redemption, clearly indicates his desire to make redemption absolutely prohibitive. It was in furtherance of the desire to make redemption impossible that he erected buildings at an expense quite beyond the means of the plaintiff-.respondent. Under these circumstances it will be wholly inequitable to compel the plaintiff-respondent to pay the newly added buildings as a condition precedent to his recovering possession of the bungalow which unquestionably belongs to him. The order of the lower appellate Court with regard to the sum of Rs. 237 spent by the defendant On necessary-improvements is equitable and limits the extent to which the plaintiff-respondent should be put on terms besides being made liable for the sum of Rs. 1,138-9-0 spent to satisfy his father's debt.
6. Section 64, Contract Act, was relied on to support the argument that the plaintiff-respondent should restore such benefits as he received under the voidable contract, viz., the mortgage in question. It is said the extent of benefit derived by the plaintiff-respondent is the
present value of the buildings in the compound of the bungalow originally mortgaged. We do not think this contention can be supported by the language of Section 64. It provides that the party rescinding, a voidable contract shall, if he received any benefit thereunder from another party to such contract, restore such benefit, so far as may be, to the person from whom it was received.
7. Benefit received under the voidable contract is what the party rescinding it actually received under the contract. The sum of Rs. 138-9-0 may be considered to be such benefit. The plaintiff-respondent cannot be said to have received any benefit with reference to the newly added buildings. In fact, the appellant now offers the benefit of improvements made by him, claiming from the defendant the cost of such improvements. The plaintiff has so far received no benefit under the contract, but will receive it if he accepts the defendant's offer. We have no hesitation in holding that Section 64, Contract Act, does not support the contention sought 'to be based on it.
8. The result is that we uphold the decree of the lower appellate Court and dismiss this appeal with costs. It has been represented to us on behalf of the appellant that the three months time granted by the lower appellate Court for the removal of the new constructions expired but that an order of stay of execution was granted by this Court pending this appeal. It is prayed that we may grant six months further time for removal of the materials. We grant three months time, which we think is ample, from today, to the appellant to arrange for the demolition and removal of the materials of his buildings.