(1) This appeal is directed against the decision of the learned Subordinate Judge, 1st Class, Rohtak, passing a decree for possession of the land in dispute by redemption on the condition that the plaintiff deposits in the Court a sum of Rs. 6,000/- payable to the defendant, on or before 18-12-1958, failing which his suit would stand dismissed with costs.
(2) It is common ground that on 3-2-1956 a mortgagee was effected on the land in suit by the plaintiff in favour of Rup Ram defendant-appellant for a sum of Rs. 6,000/-. This mortgage was with possession, and interest and profit from the land were to counterbalance each other. Its mutation was sanctioned on4-4-1956. No period having been prescribed, it was open to the mortgagor to redeem it at any time. On 17-3-1958 the mortgagor put in an application for redemption in the Court of the Revenue Assistant, Rohtak, under the Redemption of Mortgages Act, 1913, and deposited the entire mortgage money due in the treasury. Notice obviously went to the mortgagee who resisted the claim on various grounds, including absence of jurisdiction in the Assistant Collector, Rohtak, on the ground that the montage money was more than Rs. 5,000/-. It appears that on 15-4-1958 the collector, Rohtak, disallowed the application of the mortgagor which the observation that the applicant could, if so advised, seek his remedy in the Civil Court. Having failed to get redemption in the office of the Collector, the mortgagor instituted the present suit on 17-5-1958 for possession by redemption of 10 bighas and 8 biswas pukhta of agricultural land on payment of Rs. 6,000/-.
(3) The mortgagee resisted this suit as well, claiming full proprietary title in himself on the ground that the mortgagor had sold the equity of redemption to him in lieu of a loan of Rs. 1,800/- which he had taken and on which a sum of Rs. 185/- was also due as interest. In addition to this peal, compensation for improvements to the extent of Rs. 1,000/- was also claimed. It was further pleaded that the mortgagee had cultivated sugar-cane crop and melons on the land in dispute and, therefore, till these crops were harvested he was entitled to remain in possession. The trial Court, on a consideration of the evidence led in the case, repelled all the contentions raised by the defendant and passed a decree for possession by way of redemption as stated above.
(4) Feeling aggrieved the mortgagee has come up on appeal and we have heard Mr. Tuli on behalf of the appellant. It has been conceded that there is no documentary evidence showing sale of the equity of redemption. He has, however, taken us through the testimony of Mansa D.W. 4, Nanun D.W. 5 and Rup Ram defendant-mortgagee D.W. 6, but in my opinion their evidence is wholly insufficient to establish sale of the equity of redemption. As observed by the trial Court it is noteworthy that in the written statement it was expressly pleaded that the plaintiff had sold the equity of redemption; on the other hand Mansa D.W. 4 merely deposed that the plaintiff had told the defendant that he would sell his land to him in lieu of a sum of Rs. 8,000/-, which figure was arrived at by adding by Rs. 2,000/- taken by way of loan subsequent to the mortgage amount of Rs. 6,000/-.
Nanun D.W. 5 has also merely stated that Munshi plaintiff came to the defendant and said that he would sell his land in lieu of the defendant's debt of Rs. 1,800/- and the principal sum of Rs. 6,000/- and interest of Rs. 185/-. I may here mention that the principal mortgage amount of Rs. 6,000/- was not to carry any interest, though, according to the testimony of this witness, this amount was considered to be carrying interest. Rup Ram defendant as D.W. 6 has similarly stated that the plaintiff came to his baithak in Phagan and asked him to make an entry regarding final payment of the debt of Rs. 1,800/- and told him that he would sell the land in dispute for a sum of Rs. 8,000/-. This is all the evidence on the plea of actual sale of equity of redemption.
The scribe of the entry in the bahi is said to be one Ram Karan Mahaian, who has, for reasons best known to the defendant, not been produced nor is the relevant entry on this record. Mr. Tuli has explained that the bahi entry was sought to be produced when Rup Ram was being examined, but the Court below disallowed its production on the ground that the same had neither been produced along with the written statement nor relied upon. In my view the Court below was fully justified in disallowing the entry for the reasons stated by it. It is true that non-production of the scribe without the entry may not have been of much use, but it was for the defendant to produce the entry according to law and get it proved by the scribe. There is no explanation for the omission. The plaintiff has stated on oath that he never agreed to sell the land in dispute to the mortgagee as pleaded, and no cogent ground has been shown by the defendant for disbelieving this assertion. The contention of sale of equity of redemption in favour of the defendant must, therefore, fail.
(5) In so far as the question of improvements is concerned, the trial Court has held that improvements to the extent of Rs. 400/- alone had been proved. Mr. Tuli has referred us to the testimony of Rup Ram defendant and Badlu D.W. 2 in support of his attack on his finding, but in my opinion the conclusion of the Court below is fully justified. In so far as the question of the right to claim this amount is concerned, the learned counsel for the appellant has referred us to section 63A of the Transfer of Property Act and reliance has particularly been placed on sub-section (2) thereof. This sub-section in my opinion is wholly inapplicable to the case in hand, because there is no plea, nor any evidence on the present record, to show that the amount said to have been spent by the defendant was necessary to preserve the mortgaged property from destruction or deterioration or to prevent the security from becoming insufficient.
The counsel has submitted that in order to increase the yield from this land so as to recompense himself in lieu of the interest due on the principal money, the mortgagee had to effect these improvements. I am afraid this is no ground in law for granting compensation to the mortgagee in possession, and section 63A, as its restricted language clearly shows, cannot be attracted on this ground. The mortgagee in possession cannot be permitted to lay money in increasing the value of the estate except in circumstances which strictly fall with in the four corners of the section. The interpretation of this section, as suggested on behalf of the appellant, is obviously calculated to give to the mortgagee a handle to so increase the value of the estate as to cripple the mortgagor's power of redemption. This obviously could not be intention of the Legislature.
(6) The income of the land, as it existed at the time of the mortgage, was, according to the contract between the parties, to counterbalance the interest on the mortgagee amount. If, in order to increase the yield, the mortgagee effected some improvements, then he has enjoyed the benefit of those improvements and the mortgagor cannot on his part claim credit for the additional income. Had section 63A applied and had the mortgagor been burdened with the costs of improvements in the form of addition to the mortgage money, then, in fairness, he should also be entitled to claim, as of right, credit for the additional income; this however, the appellant has not offered to do. But as the improvements do not fall within the purview of Section 63A(2), Transfer of Property Act, it is unnecessary to pursue this matter any further.
(7) Lastly, the counsel has contended that when the suit was filed, and even when the money was tendered after the decree, his sugar-cane crop was standing on the land in dispute and the mortgage is entitled to the yield from the land till the mortgagee amount is actually tendered to him. It is argued that the Court below should not have decided this point against the appellant. Mr. Shamair Chand, on behalf of the respondent, has contended that it is not for the Court, deciding the suit for redemption, to go into this matter and that whether or not there were any corps standing at the time of the delivery of possession of the mortgaged land, and, if so, what was their value, must be determined by independent proceedings, and not in the present litigation. To this Mr. Tuli, has agreed. In this view of the matter the decision given by the learned Subordinate Judge under issue No. 5 with respect to the rights and liabilities of the parties to the crops alleged to have been sown or standing on the land in dispute during the period of litigation has to be deleted. This question will be determined in appropriate proceedings for the purpose. Subject to this variation, the judgment and decree of the court below are affirmed.
(8) Before concluding I may notice another contention raised by the counsel for the appellant. He has argued that as a general principle in suits for redemption the mortgagee must always be awarded costs of the litigation. I regret it is not possible for me to accede to this broad proposition. The general rule is that costs follow the event. In the present case the mortgagee resisted the claim of redemption both before the Collector and in the civil Courts, and indeed it has been very seriously opposed right up to this Court. The mortgagee has in fact, persisted in claiming title to the land in suit. It was in the circumstances open to the Court below to pass the impugned order as to costs. There is no question of principle involved in the order, which must therefore be upheld.
(9) For the reasons given above, except for the variation mentioned above, this appeal fails and is hereby dismissed, but in the circumstances of the case there will be no order as to costs in this Court.
Bishan Narain, J.
(10) I agree.
(11) Appeal dismissed.