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Bira Naik and anr. Vs. Mahanta Sidhakamal Nayan Ramanuj Das - Court Judgment

LegalCrystal Citation
Decided On
Case NumberA.F.A.D. No. 172 of 1945
Reported inAIR1951Ori300
ActsTenancy Law; Orissa Tenancy Act, 1913 - Sections 225; Transfer of Property Act, 1882 - Sections 76; Trusts Act, 1881 - Sections 90 and 95
AppellantBira Naik and anr.
RespondentMahanta Sidhakamal Nayan Ramanuj Das
Appellant AdvocateR.N. Sinha and ;S.N. Sengupta, Advs.
Respondent AdvocateP.C. Chatterji, Adv.
DispositionAppeal allowed
Cases Referred(See Abid Husain Khan v. Mt. Kaniz Fatima
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....ray, c.j.1. this is a pltf's appeal in a suit for recovery of possession or in the alternative for redemption of the disputed properties which have been mortgaged as a simple mtge. on 13-9-1913. the disputed lands are 19.87 acres of which 15.44 are tenanted & the rest are khasdakhali lands. during the subsistence of the mtge. the deft, came into possession of the disputed lands under the provisions of section 225, orissa tenancy act, binoe 27.11-1934. the present suit was instituted on 19.11-1943 with the prayer that the debt with interest at 12 1/2 p.c. p.a, that accrued due under schedule 25 & the mtge. dues under the simple mtge. had been discharged by the date of the institution of the suit & that the pltf. was entitled to recover the properties from the deft, free of previous simple.....

Ray, C.J.

1. This is a pltf's appeal in a suit for recovery of possession or in the alternative for redemption of the disputed properties which have been mortgaged as a simple mtge. on 13-9-1913. The disputed lands are 19.87 acres of which 15.44 are tenanted & the rest are Khasdakhali lands. During the subsistence of the mtge. the deft, came into possession of the disputed lands under the provisions of Section 225, Orissa Tenancy Act, Binoe 27.11-1934. The present suit was instituted on 19.11-1943 with the prayer that the debt with interest at 12 1/2 p.c. p.a, that accrued due under Schedule 25 & the mtge. dues under the simple mtge. had been discharged by the date of the institution of the suit & that the pltf. was entitled to recover the properties from the deft, free of previous simple mtge. as well as of the charge created under Schedule 25. The alternative relief of the pltf. was that in case the mtge. still existed & the mtge. money or any part of it was still due he may be allowed to redeem on payment of such amount as the Ct. -deems fit & proper. Before the suit, however, while the deft, was in possession, there was default in payment of rent. The landlord sued for recovery as against the pltf. as recorded tenant. He obtained a decree & put the disputed properties to sale, The deft, mtgee. purchased them on 24 6 1937 for a sum of Rs. 129. The deft, resisted the suit on the ground that the pltf. had lost his equity of redemption, the same having been sold away at the rent decree execution sale.

2. The points that arise for consideration are whether the deft, was a mtgor. within the meaning of Schedule 6, T. P. Aft or, at any rate, what were his rights & liabilities as a mtgee.. under Schedule 25, or, in other words, whether he had the liabilities of a quasi trustee within the meaning of Schedule 0 read with Section 95, Trust Act. Lastly the question further arises whether his purchase will enure to the benefit of the mtgor. (pltf.) or the title acquired thereby can be retained by him, & besides whether he is liable to render account for the rents & profits that he might have received during the time of his possession.

3. Both the Cts. below, relying upon a decision of the Patna H. C. reported in Fekua Mahto v. Lal Sahu, A.I.R. (26) 1939 Pat. 382 : (18 Pat. 133) had overruled the pltf's. case. The proposition on which they placed reliance as quoted in a passage quoted therein is to the effect that where the mtgee in possession of a tenancy is bound to pay rent & in default the holding is brought to sale by the landlord in execution of a rent decree & purchased by him & later comes into the hands of the mtgee. the mtgor. loses his right of redemption. Quite apart from other considerations, the mtgor. no. doubt, will lose his right of redemption if, in such a contingency, the property is sold in execution of a rent decree & purchase either by a landlord, who is not a party to the mtge. or by any other person other than the mtgee. The mtgee's subsequent acquisition of the same property from the hands of the auction purchaser, whosoever he may be, can hardly be connected with any of his liabilities or rights, as a mtgee. except under certain circumstances. In the case cited, there was nothing to show that the mtgee. secured the property back form the landlord the landlord auction-purchaser by using the. advantageous position that he was occupying in respect of the property as a mtgee. The decision, therefore, has no application to the facts of the present case in which the mtgee. is himself the auction puuchaser. Mr.. Rao strenuously contends that not only is he not liable to pay rent during his occupation of the property which he got Under Section 228, but also his purchase is free of the equity of redemption inasmuch as he does not hold the position of a mtgee. within the meaning of the Transfer of Property Act nor the position of a quasi trustee within the meaning of the Indian Trusts Act. A large number of authorities have been cited toy the counsel for both sides. Before dealing with them, I should pay attention to Schedule 25, Orissa Tenancy Act. The section says that when any person having, in a tenure or holding advertised for sale, an interest which would be voidable upon the sale, pays into the Gt. the amount requisite to prevent the sale, that deposit 'shall be deemed' to be a debt bearing interest at 12 p. c. p. a. & secured by a mtge. of the of the tenure or holding to him. I lay emphasis upon the words : 'shall be deemed' which necessarily means 'shall be deemed as if created by the parties in the manner provided by the law,' though, in fact ,. it has not been so created. The word 'mortgage' occurring in the section has non been separately defined in the Orissa Tenancy Act so as to bear any meaning other than what the word, in its technical & legal connotations would mean. 'Mortgage' is defined in the T. P. Act & the rights & liabilities of the mtgees. & mtgors. are also defined. If Mr. Rao wants to contend that the relationship of the mtgor. & the mtgee. & the position of a mtge. as created or provide! for by Schedule 25 of the Act bear any other meaning, he must have invited our attention to some such provisions either within the purview of this Act or any where else, nor has he been able to cite any authority to that effect. Sub-section (o) provides that he shall be entitled to possession of the holding Or tenure as mtgee. of the tenant that is carry with it the incidents of mtgee. in possession.' This, with all certainty, means that by the provisions of the Statute & by operation of law, he becomes a mtgee, of the tenant in the same sense & to the same extent as he would be if the relationship were created in the manner provided in the T. P. Act. It is also provided that; ha shall retain the possession of it as such (as mtgee.) until the debt with the interest due thereon has been dis. charged. The words 'has been discharged' occurring as a condition determining the continuance of possession must have a connation with it & the meaning conveyed is that the possession is co-relative of discharge of the debt. This leaves no doubt in my mind that there will arise two positions namely that with the profits k rents derived & derivable from the said property he should pay himself up & that he will continue in possession till the debts with interest thereon are completely wiped out. Of course, it will be open to the tenant to pay the debts earlier & recover the property. Me. Rao wants us to accept that the incumbrancer making deposit & acquiring the status of a mtgee. shall be entitled to retain the property without the liability to account for the rents & profits received by him, without liability to pay the public charges due in respect thereof till when he is paid in cash by the defaulting tenant, the amount deposited plus the interest payable according to the terms of the section at I21/2 p. c. . a. which means that the defaulting tenant for the time being forfeits the property & even though the mtgee, recovers more than l00 times the deposit with interest thereon he would still hold it on. This sort of proposition appears to me to be mons . trous. It throws to the wind any wind any idea of equity & common sense which must be presumed to be in the minds of the Legislature in enacting the provision. He goes still further to say that if the landlord sues for the arrear of rent accruing during the time of his possession & brings the property to sale & either purchases it himself or some stranger purchases it the auction purchaser shall either not be entitled to get possession from him or, if at all, shall be entitled to get possession only after he pays him up or, to use his own language, redeems him. This he argues in the face of cl. (b) of Sub-section (1) of the section which reads:

''his mtge. shall take priority of every other charge on the tenure or holding other than the charge for arrear of rent.'

4. If this sub-clause has not the meaning that the rents as they accrue, always become a first charge even prevailing over the deposits made, I do not know what else it means. Under the circumstances, the contention of Mr. Rao, if accepted will land us not only in an anomalous position but also in grotesquely absued position. Section 225 must be read with the provisions applying to 'mortgages', defining various rights & liabilities as between mtgor. & motgee under the T. P. Act. The section of the Act which is relevant is Section 76, T. P. Act which defines liabilities of mtgee. in possession. According to Sub-section (c) of this section he (mtgee in-possession) must, in the absence of a contrast to the contrary, out of the income of the property, pay the Govt. revenue, all other charges of a public nature & all rents accrued due in respect thereof during such possession & any arrears of rent in default of payment of which the property may be similarly sold. This of. (c) means that he is liable to pay rent not only as they accrued due & fell into arrears but also such as had already been due & in default of payment whereof the property is liable to be sold. In this view the deft had the liability to pay the arrears of rent as they accrued due. His default amounted to civil wrong. If he is allowed to keep the pro party to himself it will amount to allowing him to reap the benefits of his own wrong. If any doctrine of equity is well settled beyond any controversy, it is that no one shall be permitted to gain by his own wrong.

5. There is another reason inherent in the language of the section itself which must lead unmistakably to the conclusion that the liability to pay rent accruing due during the possession of the mtgee. within the meaning of Section 225 must be his. Clause (c) of sub a, (l) of the section delimits the duration of his possession & provides that his retention of possession shall continue until the debt (the amount deposited to save the holding or the tenure from sale) with interest throughout has been discharged. Suppose, the said mtgee. was not liable to pay the rents as they accrued due from time to time during his occupation, but in order to protect his interest he paid all such rents which, as I have already said, constituted a charge even as against him according to cl, (b) of the sub section, but, in fact, the liability to pay such rent was in law with the recorded tenant, the Legislature must have said that he shall be entitled to retain possession until these rent charges, paid by him but not payable by him, had also been with due interest throughout, discharged. sides, liability to pay to pay public charges in respect of any immoveable property must, in the absence of any contract or covenant to the contrary, lie on the man in possession. This has been so laid down in the case of Abid Hussain Khan v. Kaniz Fatima, 46 ALL. 269 at p. 273: (A. I. R. (11) 1924 P. C. 102). This was a case which required investigation of the law as it stood in relation to mtgee's liability when he came into possession of the mortgaged property before the passing of the T. P. Act. Their Lordships said:

'In British India a mtgee, in possession of immoveable property under a mtge, made before the T. P. Act of 1882 came into force was under the ordinary law then in force bound to manage it as 'a person with ordinary prudence would manage it if it were his own , & unless there was an agreement to the contrary with the m'got, he was bound to pay out of the income of the property of the property the Govt. land revenue which might during his possession be assessed upon it & such charges of a public nature as might accrue due in respect of the property & be payable by the person in possession of the rents & profits, & was not entitled to charge such payments against his mtgor. in the accounts.'

6. What I understand the section of mean is 'his right to retain possession until completely reimbursed of the debt with interest due throughout will entitle him to pay the public charges and to deduct the same from the rents & profits that accrued from the holding or tenure in his possession & t adjust the balance only against the debts & interest due to him. To me it appears that it is futile to contend that while such statutory or equitable mtgee. would continue in possession, the mtgor. namely, the tenant would remain liable to pay the rents.

7. Apart from the section , the very position that the depositor. o the amount is constituted by the section -a mortgagee is entitled to hold (Sic) makes him liable for such liabilities as any other mtgee. should be under the T. P. Act. The strongest possible argument against this view as urged from the Bar was that the mtge. contemplated in the section was not a. mtge. constituted by a transaction inter vivos between the parties & as such the principles of the T. P. Act were inapplicable. The virtual position of a mtgee. though not actually so, has come up for consideration in several decisions in the P. 0. & it has been held that though not a mtgee. under a contract yet ha was liable as mtgee. at least on the principle which is applicable in regulating the relation between the principal & the managing agent. The cases are Papamma Rao v. Ramachandra 'Rozu, 19 Mad. 249 at p. 254 : (23 I. C. 32 P. C.) and Kamlapat Motilal v. Union Indian Sugar Mills Co. Ltd., A. I. R. (16) 1929 P. C. 256 (119) I.C. 631), The latter case was followed by their Lordships of the Calcutta H. C. in the. case of Shib Dass Dass v. Kali Kumar Roy 30 Cal. 463 : (7 C.W.N. 532). That was a case in which the mtgee, purchased the right of redemption & that wrongfully & then got into possession. Their Lordships held though Schedule 6 did not strictly apply he was under liability of a mtgee. as under Schedule 6, T. P. Act. There can be no doubt that the mtgee. either contractual or statutory or equitable holds the position of a trustee as against the mtgor. (see S, SO, Trust Act). Section 95 of the said Act enumerates &i; defines the liabilities of a mtgee, qua trustee & his liabilities to pay the public charges & to protect the property in a state of prudent management has been clearly provided for. In the case of Kshetra Nath v. Durgapada, 52 I. C. 902 at pp. 905 & 906: (A. I. R. (6) 1919 Cal 309), a mtgee, by operation of law has been held to be a trustee under a resulting trust & it has been laid down that the liabilities provided for in Section 76, cl. (c), T. P. Act did attach to his position as such. Similar view has been taken in cases of Bombay & Madras H. Cs. of which references would be made to Kalappa v. Shivaya 20 Bom 492 & Jayanti Lakskmaya v. Pedda Appadu, 7 Mad. 711. Belying upon the earliest P. C. case on the point, the case of Nuzur Ally Khan v. Ojoodhyaram Khan, 10 M. I. A. 540 : (2 Sar 193 P.C.) it has been held that the mtgee, who wilfully let the revenue payable in respect of the estate fall into arrears & ultimately purchases the property himself, is estopped from saying that the equity of redemption did not subsist for the benefit of the mtgor. Under the circumstances, it is clear that the contention that the equity of redemption hag been lost, having been acquired by the deft is no maintainable.

8. The case of Chandi Maher Mander v. Sitabi Bhagat, 21 P.L.T. 699, though not a case of purchase at auction sale but of acquisition by settlement from landlord by a mtgee. the same equitable view has been taken, namely, that the mtgee. cannot acquire the property & deprive the mtgor. of his rights by his own acts of default. The facts of that case were that the mtgee. committed default in payment of rent; the land-lord took possession treating the holding as abandoned, & later settled it with the mtgee ; that the holding was treated as abandoned by landlord was due to the default on the part of the mtgee in payment of rent as the mtgee's possession could not be considered to be a possession of the recorded tenant or one authorised by the landlord. The mtgee. thus utilized his possession in order to gain an advantage over the mtgor. with a view to acquire his right.

9. The next question that has been discussed at the Bar & does directly arise oat of the arguments joined by the parties is the liability of the deft, to account. That the liability is there is clear from the language of el. (c) of Sub-section (l) of Schedule 25. Unless he accounts for the rents & profits, how else is it going to be established whether his debt with interest has been discharged or not. While urging that in taking the view, that the are taking we are reading something into the language of Section 5)25, Mr. Rao, counsel for the resp. himself reads into the section's language which will favour his contention, but with no justification either in the rules of equity or in the rules of law. He virtually contends that he holds the possession as a matter of penalty or forfeiture of tenant's rights; that so long as he holds, he holds it for himself for his benefit without liability to account for the rents & profits & without the liability of public charges as they accrue due from lime to time In other words, he, the recorded tenant of land, goes on making payment of such charges & also continues to be liable to pay the deposited amount constituted the debt within the section & its interest but for the very charitable & beneficial act of making the deposit, he (the depositor) will enjoy the lands free from any liability whatsoever. Such a construction would amount hold that once the tenant fails to pay the rent & somebody, in order to protect his own interest, pays it up, acquires the property to complete deprivation of the recorded tenant . This amounts to forfeiture & it is a fundamental canon of on of construction that such forfeiture should not be inferentially construed to have been intended nor is there any dear & explicit language warranting such a construction.

10. Legal mtge. has been defined as a transfer of a legal estate or interest in land or in other property for the purpose of securing the repayment of a debt. But where the creditor obtains an equitable estate or interest in land or in other properties, the mtge, is called an equitable mtge. In the present case, the deposit made by the mtgee. is constituted a debt within the meaning of the section. In respect of that the mtgee, is the creditor & the tenant is the debtor & an equitable estate in the holding is created by statute in his favour Under the circumstances, this equitable estate must carry with it all the equitable rights & incidents thereof. It has been ever stated to be the well settled principle of law & equity, that a mtgee in possession is liable to account on the footing of wilful default, that is, he will account not only for the amounts actually received by him but also for the sums which, but for his own default, he might have received (Snell's Principles of Equity, 1930 Edn., p. 305). Mr. Sengupta, appearing for the applt. has invited our attention to a decision reported in Nilkant v. Jaenoddeen, 7 W.R. 30.

11. In consideration of what I have said above, I hold that (the contention that?) the equity of redemption has been lost by the auction sale in which the deft, purchased the property is not maintainable, & that the deft, is' liable to account for the rents & profits in the same manner as indicated in the passage above based on Sell on Equity. If on rendition of accounts of the rents & profits if is found that, after the disbursement of the debt with interest under Schedule 25 & the mtge. money under the simple mtge, any amount is still due in the hands of the deft he will have to pay the same to the pltf, with interest at 12 P.O.P.A. till the date of realisation. In case the rent & profits are insufficient to liquidate the aforesaid dues, the pltf. will have to pay the same before he is allowed to redeem. Accordingly, a decree shall be prepared by the Ct. below in the preliminary form & after settlement of accounts the decree shall be made final in terms according as there are sums due from the deft, or from the pltf.

12. In the result, the appeal succeeds & is allowed with coats throughout.

Panigrahi, J.

13. I have arrived at the same conclusion but would like to give my reasons for the same. Nothing can be simpler than the facts giving rise to this litigation.. Nothing is more far reaching than the discussion of the fundamental legal principles which it has given rise to. The admitted facts are that the deft. entered into possession of the properties over which he held a simple mtge on payment of the arrear rent due on the land when the property was about to be sold at Ct. auction at the instance of the landlord. While in possession he allowed the rent to fall into arrears & the property was again put up to sale & actually sold on 26-1-37 the deft, himself being the purchaser. The pltf. l who was the tenant mtgor. having sold the equity of redemption to pltf. 2 the pltfa.-applts. now sue seeking redemption of the mtge. & recovery of possession of the property.

14. The decision of this appeal rests upon the correct interpretation of the language used in Schedule 95, Orissa Tenancy Act, which enables a person having an interest in a holding to deposit the arrear rent due in respect thereof & prevent the sale. The section declares in Cl. (i) (a) of S 225, that the amounts so paid shall be deemed to be a debt & secured by a mtge. or the holding. Sub-section (c) provides that the person so paying shall be entitled to possession of the holding as mtgee. of the tenant & to retain possession of it as such until the debt has been discharged. The applt's contention both in the Cts, balow & in this Ct. is that the deft, having entered into possession while the relationship between him & the pltf. was that of a mtgor. & mtgee, 'became a mtgee. in possession' within the meaning of Section 76, T. P. Act & made himself liable to pay the rent due on the holding & maintain accounts under Sub-section - (c) & (g) of Section 76. The Ota. below declined to give effect to this contention on the ground that the T. P. Act contemplates transfers by acts of parties & the provisions of SB. 72 & 76 must be strictly limited to mtges. created by act of parties. On behalf of the reap, it has been contended that the expression 'mtgee. in possession' must be interpreted to mean that under the contract of mtge. the mtgee. should be entitled to enter into possession & cannot be extended to a case like the present one where the deft no doubt, is a mtgee. but gets into possession not as qua mtgee. but under a specific provision of the Tenancy Act. This argument does not appeal to me for the reason that the expression 'mtgee. in possession' applies to a mtgee who takes over the control & management of the property from the mtgor. whether by agreement or otherwise. The ease of a mtgee. who merely collects rents & profits of the mortgaged premises, either under a lease or some other arrangement may stand on a different footing, but where the mtgor. is deprived of the entire control, direction & manage, meat of the mortgaged properties, the person having such dominion is & must be regarded to be in possession of the estate. My second reason is that the T. P. Act is not exhaustive of all kinds of transfers of property nor of all kinds of charges that may be created over immoveable property. Even before the T. P. Act was passed, the principles embodied in the Act ware applied in this country to such transactions on the principle of equity, justice & good con science, I am, therefore, of opinion that whether the T. P. Act in terms applies to this transaction or not, the liability to account of & parson in possession of another's property is beyond question. The case in point which justifies this conclusion the one reported in Papamma Rao v. Ramachandra Razu, 19 Mad. 849: (23 1. A. 82 P.C.) where under an invalid decree a Simple mtgee. entered into possession of a mortgaged property. In a suit for redemption the Judicial Committee of the P. C, laid down that the decree for possession in favour of the mtgee. did not preclude redemption, the possession of the decree-bolder having only been as mtgee. & having involved liability to account to the mtgor. To borrow the language of the Judicial Committee 'the mtgee. thereupon became mtgee. in possession & as such he must submit to be redeemed'. Similar oases, where the mtgee, gets into possession otherwise than under the terms of the contract, are to be found reported in Shib Dass v. Kali Kumar Roy, 30 Cal. 463: (7 C.W.N. 532) & Nilkant v. Jaenoddeen, 7 w. E. 30. The latest case cited on the point is reported in Kamalpat Mott Lal v. Union Indian Sugar Mills Co. Ltd., A. I. R. (16) 1929 P. C. 956, (119 O.C. 631). In this case the creditor was put in possession of certain properties which had been proposed to be mortgaged to him. The proposed mtge. having fallen through, the question arose as to what the status of the creditor in possession was, Their Lordship of the P. 0. in applying Schedule 6, T. P. Act held.

'that no further duty of care could be imposed upon the mtgees. than arises out of the statutory duties imposed upon mtgees. in possession under Schedule 6, T. P. Act on the one hand, or of the ordinary, legal duties of managing agents on the other. They cannot see that any advantage is gained by seeking expressly to define these.'

The last observation is significant because whether weather the person in possession is to be regarded as mtgee. in possession or merely as a managing agent, his liability to account for the rent & profits received or which in the natural course of events should have been received by him as a prudent manager is beyond question. On behalf of the reap. Mr. Rao has drawn our attention to the case reported in Kishendutt Ram v. Mumtaz Ali Khan, 6 I. A. 145: (5 Cal. 198 P.C.); Sorabjee v. Dwarkadas Ranahhoddas, 59 I. A. 366: (A. I. R. (19) 1932 P. C. 199); Gobindarajam Pillai v. Alagapa Chettiar, I. L.R. (1943) Mad. 418 (A. I. R. (30) 1943 Mad. 202); Kameshwar Singh v. Jhalak Singh, A. I. R. (36) 1949 Pat. 16: (29 P. L. T. 323). In the earliest P. C. case a usufructuary mtgee. purchased a Birt tenure while the mtge. was in force & the Board held that it amounted to an acquisition & enured for the benefit of the mtgor. following the rule of law laid down in some English cases. Their Lordships observed:

'It is difficult to see why, as in the case of a renewable lease, the same equity should not attach to the mtgee., particularly if by reason of his position as mtgee. in possession he has had peculiar facilities foe obtaining the surrenders.'

In the case reported in Sorabjee v. Dwarkadas Ranchhoddas, 59 I. A. 366 : (A. I. R. (19) 1932 P. C. 199), the Board again pointed out that S 63, T. P. Act, embodied the same principle as indicated in Section 90, Trusts Act. A reference was made to the earlier case of the Board, which I have referred to just now. It was pointed out that the equitable principle applied by the Lordships in that case to acquisition by a mtgea. has now been embodied by Schedule 0, Trusts Act, 1882, in a wider rule dealing with acquisition by tenants for life, co-owner, mtgees & other qualified owners. It was argued before the Board that Section 63, T. P. Act, goes farther than Section 90, Trusts Act, & that the mtgor, would the entitled to treat subordinate tenures acquired by the mtgee. for his own benefit as accessions to the mortgaged property without regard property TO the question whether the mtgee had special advantage by reason of his position as mtgee. in acquiring them. In the Madras Case, it was pointed out that Section 90, Trusts Act, affords protection against the mortgaged properties being gold at a disadvantage & prevents certain persons from taking advantage of their position to secure a benefit to themselves in derogation of the rights of those others. In this particular case, it was held that there was no such duty cast upon the mtgee. to pay the revenue & so it was held, on the facts, that he was not a party to any scheme to bring about a default in payment; accordingly, his purchase was upheld. In the latest decision of the Patna H. C. reported in Kameshwar Singh v. Jhalak Singh, A. I. R. (36) 1949 Pat. 16 : (29 P. L. T. 323), the same principle was applied. It was argued that the tenancy which is transferable by custom of statute & is put up for sale could be purchased by a stranger. There is no reason why a mtges. should at all be prevented as being in a worse position so as to disentitle him from purchasing the property. It was also argued that in such circumstances, he could not be said to have taken an advantage & derived benefit to himself to the disadvantage of the mtgor. Bennett J. in repelling this contention, held that the rule prohibiting a purchase by a person who holds an advantageous position over the property applies to a mtgee as well. None of these cases in my opinion helps the resp.

15. The provision embodied in Schedule 25 was borrowed from Section 177 (l), Bengal Tenancy Act, .& was incorporated to provide a special measure of protection to a mtgee. of an occupancy holding as most of them were non-transferable. Under the general law, a person who makes payment for another is entitled to a lien or a charge on the property unless of course he pays voluntarily. This is founded on the well known doctrine of salvage lien & there was a controversy in the Calcutta H. C. as to whether a lien was a personal remedy or could be enforced against a property that is saved from sale. Similar provision is to be found in Madras Revenue Recovery Act & the Bengal Revenue Sale Act, 1859 & the point came to a head in what is known as the famous case of Kinu Ram v. Kamaruddin, 14 cal. 809 (f. B ), where the majority constituting the Bench declined to give effect to a charge binding on the property & declared that the person who made the payment was entitled only to a personal remedy against the person for whom the payment was made. It is in view of this that the Legislature appears to have incorporated this provision which guarantees repayment of the money deposited by a person having an interest in the said holding such as a mtge. by declaring the amount paid to be a debt & by securing the property by way of mtge. I can, therefore, see no difference between a mtge. created by the statute such as the one contemplated in Schedule 25 of the Tenancy Act & a mtge. created by act of parties. Mr. Rao for the resp. wanted us to hold that this section was in the nature of a penalty sought to be imposed on the defaulting tenant & that he could not claim any account of the receipts while the mtgee was in possession. Secondly, it was urged that if during the period he was in possession the occupancy right is purchased by the mtgee, the tenant cannot question or seek to recover the land relying upon his title at the time of the mtge. It is not for us to guess what the intention of the Legislature was in enacting this provision. Our duty is to interpret not the meaning of the Legislature but the meaning of the language used by the Legislature. At the time this provision was incorporated, the expressions mtgee. & mtgee. in possession' had been crystallised into specific provision embodied in the statute. There is no reason why it should be held that these words were used in the Tenancy Act in a sense other than in which they were generally understood. But apart from this being decided as a matter of construction, there is authority for the proposition that, even before the T. P. Act came into force, the mtgee. in possession of immoveable property was, under the ordinary law then in force, bound to manage it as a person with ordinary prudence would manage it as if it were his own, & unless there was an agreement to the contrary with the mtgor. he was bound to pay out of the income of the property the Govt. land revenue which might during his possession be assessed upon it & such charges of a public nature as might accrue due in respect of the property & be payable by the person in possession of the rents & profits. (See Abid Husain Khan v. Mt. Kaniz Fatima, A. I. R. (11) 1924 P. C. 102 : (46 ALL. 269).

16. It is worthwhile to cote that when the T. P. Act was amended in 1929, the words' and all rent' were for the first time introduced into Schedule 6 (c) removing all doubts whether the rent payable by the tenant to his landlord was a charge of a public nature. It is, therefore, clear that the deft, while he held the character of a mtgee. entered into possession & was as such bound, whether under the T. P. Act or other, wise, to pay all rent accruing due in respect thereof during such possession.

17. As I have said, either Schedule 6, T. P. Act, applies or it does not. If it applies, the liability of the resp. to account is created by the provision of the statute itself; if it does not, the applt's contention is that he would be liable even otherwise to account & cannot take advantage of the auction sale as the right of the ratgor. is protected under the provisions of the T. P. Act. It may be noticed that a mtgee. is not a trustee for the mtgor, but the Indian Trust Act imposes certain obligations upon the mtgee. which are in the nature of a trust. Chapter IX of the Indian Trust Act deals with certain obligations in the nature of a trust & Section 90 provides against any advantage gained by qualified owners such as, tenant for life, co-owner, mtgee. & the like. The conditions under which the advantage gained by such qualified owner will be deemed to have been held on behalf of the beneficiary are laid down in the section. Similarly, Section 88 provides against such acts committed by a person holding a fiduciary character &the; residuary Section 94 provides for cases not directly coming within the scope of any of the preceding sections. Section 94 says that in any case not coming under the scope of any of the preceding sections where there is no trust, but the person having possession of property has not the whole beneficial interest therein, he must hold the property for the benefit of the persons having such interest. Section 95 makes applicable all the sections of the Trusts Act defining the duties, liabilities & disabilities of the trustee to such persons. If the case covered by Schedule 0 illus. (c) is a complete answer to the resp a contention, & if Section 94 is the section applicable, then the liabilities of the trustee denned in Sections 15 & 19 of the Act will apply to the case [under Section 96 of the Act. In either view of the case, I am led to the conclusion that the resp. was a mtgee in possession & as such was liable to be redeemed & liable to render account of his receipts during the period of his possession. I have, therefore, no hesitation in concurring with the judgment delivered by my Lord just now & the order regarding interest & accounting proposed by him. The result is the appeal shall be allowed with costs throughout & the mtgee, deft, shall be called upon to render accounts of his receipts either actual or such as he should have received & to make over the excess collections after taking the accounts with interest at 12 p. c. p. a.

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