G. Kumara Pillai, J.
1. Against the decree in a suit for redemption which was brought by five plaintiffs for and on behalf of their tarwad and which has been dismissed by the Court below plaintiffs 2 to 5 have filed this appeal. They are sisters and plaintiff 1 was their mother. The mother died before the suit was dismissed, and plaintiffs 2 to 5 are her legal representatives,
2. According to the plaint allegations, plaint schedule properties, seven in number, belong to a Nair tarwad known as Vazhapalli tarwad, and the plaintiffs and defendants 2 to 5 are members of two thavazhis in one branch of that tarwad -- one tavazhi consisting of the plaintiffs and defendant 5 and the other, defendants 2 to 4. Defendants 3 and 4 are sisters, and defendant 2 is their brother.
In 1070 Krishna Pillai Parameswaran Pillai of Vazhapalli tarwad executed a mortgage deed for 5000 fanams in respect of plaint schedule items 1 to 3 in favour of one Mallan Pillai Sankara Pillai, and one John David obtained an assignment of that mortgage in 1075. On 17-7-1075 John David obtained another mortgage from Vazhapalli tarwad for 5300 fanams in respect of plaint schedule items 1 to 7, (Ext. A is a copy of the assignment of the mortgage of 1070 and Ext. B a copy of the mortgage of 1075).
Ext. B is supported by consideration only to the extent of 1300 fanams, and the balance mortgage amount of 4000 fanams recited in that mortgage deed as reserved with the mortgagee for subsequent payment to the mortgagors has not been paid. While John David was in possession of plaint schedule items 1 to 7 under these mortgages, Kali Pillai Velayudhan Pillai and Kali Pillai Krishna Pillai of Vazhapalli tarwad executed in his favour a purakkadom (Ext. G copy) for 1000 fanams on 21-8-1079 charged upon all the mortgaged properties.
Subsequently, the mortgage and purakkadom rights were sold in execution of a decree against John David and purchased in Court auction by one Ramakrishnan Chettiar who also got delivery of possession of the properties in pursuance of the execution sale. After this Court sale and delivery, Kali Pillai Velayudhan Pillai who was the karnavan of the plaintiffs and defendants 2 to 5 executed in favour of Ramakrishnan Chettiar two other purakkadoms -- one for 450 fanams in 1093 (copy Exhibit D) and another for 700 fanams in 1100 (Copy Exhibit E).
Defendant 1 has obtained an assignment of the rights under the above moitgages and purakkadoms, and she is in possession of all the plaint schedule properties. Since defendant 2 who is the karnavan of the tarwad, was taking no steps to redeem the mortgage plaintiffs have been compelled to bring the suit in order to protect the rights of the tarwad. When they issued a notice to defendant 1 seeking redemption of the mortgages and purakkadoms she replied that the equity of redemption of the plaint properties had been sold in execution of a decree and she had purchased the same in Court auction and had thereby become the full owner of the properties and that plaintiffs were not therefore entitled to redeem the mortgages.
On subsequent enquiry made by them plaintiffs learnt that on account of the mortgagee's failure to pay the dues payable in respect of the plaint properties to Oorumatom, the Jenmi of the properties, the said Matom obtained two decrees for the Jenmi's dues, namely, O. S. 1045 and O. S. 1726 of 1110 of the Trivandrum Munsiffs Court, that, although there was a direction to defendant 1 in the assignment taken by her that she should discharge the decree amounts in those two suits, she did not discharge the said amounts and with the intention of obtaining the equity of redemption also for herself she took an assignment of the said decrees benami for her in the name of one of her relatives, Bhaskaran Nair, and caused the equity of redemption to bet sold in execution and purchased by him.
This execution sale will not affect the right of the plaintiffs' tarwad to the equity of redemption, and notwithstanding the execution sale the plaintiffs tarwad is entitled to redeem the mortgages. Plaintiffs are also entitled to get 1700 fanams from defendant 1 as damages on account of silting up of some of the plaint properties with sand. Plaintiffs brought the suit on the above allegations and prayed that a decree might be passed in favour of plaintiff 5 for depositing in Court 8450 fanams as the price of redemption and redeeming and recovering possession of the plaint properties for and on behalf of her tarwad. A sum of 1700 fanams was claimed from defendant 1 on account of damages for waste, and mesne profits also were claimed at the rate of 140 paras of paddy per year from the date of the deposit of the price of redemption.
3. Defendants 1 and 2 contested the suit. Defendant 1 contended that there was no Vazhapalli tarwad in existence as it had become divided, that plaintiffs and defendants 2 to 5 did not belong to the same branch, that plaintiffs and defendant 5 belonged to one branch and defendants 2 to 4 belonged to another branch, that these branches had become divided from each other about the year 1060, that even the two branches of the plaintiffs and defendant 5 and of defendants 2 to 4 had effected partitions in 1096, 1104 and 1108, that there was no community of interests between the branch of plaintiffs and defendant 5 and the branch of defendants 2 to 4, that the suit brought by the plaintiffs on behalf of the Vazhapalli tarwad was not therefore maintainable, that Krishna Pillai Parameswaran Pillai who executed the mortgage of 1070 belonged to a branch which had become divided from the branches of the plaintiffs and defendants 2 to 4 in 1060, that Kali Pillai Velayudhan Pillai was not the plaintiffs' karanavan, that Kali Pillai Velayudhan Pillai and Kali Pillai Krishna Pillai who executed Ext. B had taken a Kanom for the plaint properties from Oorumatom in 1074 and they had special rights over those properties, that Ext. B was fully supported by consideration, that the equity of redemption of the plaint properties was sold in execution of the decree in O. S. 1045 of 1110 which was passed for arrears of michavarom and other dues payable to the Tenmi, that the said decree was passed even before the assignment taken by defendant 1, that Bhaskaran Nair who had taken the assignment of the said decree and purchased the equity of redemption of the plaint properties in execution, was not a benamidar for defendant 1, that after he purchased the properties in execution and obtained delivery of the same through Court he assigned his rights to defendant 1 and she has thereby become the full owner of the properties, and that the plaintiffs were not therefore entitled to get a decree for redemption.
She also denied that any damage was caused to the properties by silting up and contended further that in the event plaintiffs being given a decree for redemption she was entitled to get Rs. 1500 on account of the value of the improvements effected by her. Defendant 2 also filed a written statement in the case supporting the contentions of defendant 1 and denying that he was the karanavan of any undivided tarwad.
4. The lower Court found that there was no Vazhapalli tarwad in existence on the date of the suit as the said tarwad had become divided into different branches at least before 1066, that the branch of the plaintiffs and defendant 5 and the branch of defendants 2 to 4 were themselves divided from each other, that even in each of these two branches, there were partitions inter se, that the suit brought by the plaintiffs for and on behalf of the Vazhapalli tarwad was not therefore maintainable, that Ext. B was fully supported by consideration, that the equity of redemption of the plaint properties was validly sold in execution of the decree in O. S. 1045 of 1110, that Bhaskaran Nair who took the assignment of the said decree and purchased the equity of redemption of the plaint properties in execution thereof was not a benamidar for defendant 1, that the assignment which defendant 1 got from Bhaskaran Nair of the auction purchaser's right to the equity of redemption would not enure to the benefit of the mortgagors, and that on account of the execution sale in O. S. 1045 of 1110 and the subsequent assignment of the auction purchaser's right taken by defendant 1 the equity of redemption of the plaint properties was extinguished and defendant 1 had become the full owner of the properties. As a result of these findings that Court dismissed the suit with costs to defendant 1, and so the plaintiffs have filed this appeal.
5. At the time of hearing in this Court it was admitted by the appellants' learned counsel that the Vazhapalli tarwad had become divided into different branches before 1066. He stated Chat after the said partition there were three different branches in the tarwad, namely, the branch of the plaintiffs and defendant 5, the branch of defendants 2 to 4, and the branch of Krishnan Parameswaran who executed the mortgage of 1070, and that the plaint properties were allotted in the said partition to Krishnan Parameswaran's branch.
According to him, Krishnan Parameswaran's branch became extinct after 1070, and then the properties belonging to that branch devolved upon the two branches of the plaintiffs and defendant 5 and defendants 2 to 4, and the Karanavans of the said two branches subsequently executed Ext. B in 1075. He also admitted that after the execution of Exhibit B there were partitions in both the branch of the plaintiffs and defendant 5 and the branch of defendants 2 to 4.
But he contended that , although on account of these partitions there was no undivided tarwad or even an undivided branch on the date of suit and even though the suit had been brought for and on behalf of the Vazhapalli tarwad as a whole which had ceased to exist long before the date of the suit, plaintiffs are competent to maintain the suit in their individual capacities and can be given a decree for redemption in this suit itself.
The contention was that after the extinction of Krishnan Parameswaran's branch the properties belonging to that branch including the plaint properties had devolved on the branch of the plaintiffs and defendant 5 and the branch of defendants 2 to 4, that these two branches had renewed the mortgage of 1070 by executing Ext. B in 1075, that the result of the subsequent partitions in the branch of the plaintiffs and defendant 5 and the branch of defendants 2 to 4 would be to make the individual members of the two branches co-owners or co-sharers of the equity of redemption, and that as co-owners or the equity of redemption plaintiffs are entitled to redeem the mortgage and maintain a suit- for redemption. It was also stated that plaintiffs and defendants 2 to 5 were the only co-owners of the equity of redemption on the date of suit, and so no prejudice also will be caused to the mortgagee by allowing redemption in this suit.
6. The admission of the appellant's learned counsel regarding the division of Vazhapalli tarwad into separate branches and the subsequent partitions between the members inter se of those branches is fully supported by the evidence in the case. In Ext. B, which is one of the mortgages sought to be redeemed and which was executed in 1075 by Kali Pillai Velayudhan Pillai and Kali Pillai Krishna Pillai, it was expressly stated that the mortgaged properties belonged to their tarwad and had been allotted to the share of Krishnan Parameswaran's branch and that on the extinction of Krishnan Parameswaran'a branch the executants had become entitled to the properties.
P. W. 1, who is the husband of plaintiff 2 and the only witness examined on the side of the plaintiffs, admitted in his cross-examination that Vazhapalli tarwad was divided into four separate branches about the year 1068 -- the branches being those of (1) Perumal Kochu, (2) Perumal Bhagavathi, (3) Perumal Easwari, and (4) Perumal Narayani -- that the plaintiffs belonged to Easwari's branch, and that Kali Pillai Krishna Pillai was the Karanavan of that branch.
That defendants 2 to 4 belonged to another branch was also admitted by P. W. 1. He further admitted that Exts. I and II arc partition deeds 'executed by the members of Easwari's or Kali Pillai Krishna Pillai's branch. By Ext. I executed in 1096, that branch got divided into two separate thavazhis. The plaintiffs and one Achuthan Pillai belonged to the second thavazhi mentioned in Ext. I. A partition between the members of that thavazhi was effected by Ext. II in 1108.
Exts. XII and XIII are certified copies of the judgment in two earlier suits in both of which Kali Pillai Velayudhan Pillai and Kali Pillai Krishna Pillai were parties and the question arose for decision whether their branches were divided from one another or belonged to a common undivided tarwad. In Ext. XII, the judgment in a suit of 1096, it was held that Vazhapalli tarwad had become divided into separate branches before 1066, and that Kali Pillai Velayudhan Pillai and Kali Pillai Krishna Pillai belonged to two separate branches.
The fact that Krishnan Parameswaran's branch had become extinct is also mentioned in Ext. XII, and that fact is admitted by P. W. 1 also. The finding in Ext. XIII also regarding the divided status of the parties was the same as the finding in Ext. XII. There can therefore be no doubt of the fact that Vazhapalli tarwad was not in existence on the date of suit and that it had god divided into separate branches and even the members of the branches had effected partition inter se long before this suit was instituted.
It follows that the suit as framed, on behalf of the Vazhapalli tarwad as a whole, is not maintainable. When the properties which originally belonged to Krishnan Parameswaran's branch devolved after the extinction of that branch on the surviving branches, the surviving branches could have taken those properties only as tenants-in-common, with each branch having separate rights, and not, as an undivided tarwad comprised of all the surviving branches.
Likewise after the subsequent partition between the members of the plaintiffs branch, any common property left out of the partition would belong thereafter not to the branch as a whole and as constituting an undivided tarwad with respect to such property, but to the individual members or units of the branch as tenants-in-common and with each divided member or unit having separate rights to the property. As has been pointed out in Velayudhan Nair v. Janaki, 1957 Ker LT 222 (A), when once a Marumakkathayam tarwad becomes divided there will be no tarwad on behalf of which a divided member can sue.
7. The appellant's learned counsel contended that, although the suit brought for and on behalf of Vazhapalli tarwad is not maintainable for the reason that the said tarwad was not in existence on the date of the suit, the plaintiffs can be given a decree in this suit for redemption as they are at present co-owners or co-sharers of the equity of redemption and all the other co-owners or co-sharers of the equity of redemption are parties to this suit.
Defendant 1's answer to this contention is two-fold. One is that the equity of redemption has been extinguished by merger with the mortgage right and she has thereby become the full owner of the plaint properties, and the other is that all the co-owners of the equity of redemption have not been made parties to this suit. The main defence of defendant 3 to the suit -- her real objection to the claim for redemption by the mortgagors or any one claiming under them -- is that plaintiffs and defendants 2 to 4 have no right at all to the equity of redemption as the equity of redemption has been extinguished by merger with the mortgage right consequent on the execution sale in O. S. 1045 of 1110 and the assignment which she (defendant 1) has taken of the auction purchaser's rights.
The appellant's answer to this defence is that the equity of redemption has not been extinguished and that, although the equity of redemption was sold in execution of the decree) in O. S. 1045 of 1110 and defendant 1 has obtained an assignment of the auction purchaser's rights, there has been no merger of the equity of redemption with the mortgage right since the mortgagee was bound to pay the Jenmi's dues for which the decree in O. S. 1045 of 1110 was obtained by the decree-holder thereof and defendant 1 was specially directed in the assignment deed, Ext. F, taken by her to discharge the said decree-debt and the assignment of the auction purchaser's rights taken by her (Ext. X) would therefore enure to the benefit of the mortgagors under Section 90 of the Trusts Act
8. Both, sides admit that the plaint properties were first mortgaged by Krishnan Parameswaran in 1070, and that after his death another mortgage. Ext. B, was executed in 1075 by Kali Pillai Velayudhan Pillai who belonged to the branch of defendants 2 to 4 and Kali Pillai Krishna Pillai who belonged to the branch of the plaintiffs in favour of John David. There was a direction in Ext. B that the mortgagee should pay the tax due to the Sirkar and the Jenmi.
Subsequently Kali Pillai Velayudhan Pillai and Kali Pillai Krishna Pillai jointly executed Exhibit C purakkadbm in favour of John David in 1079, and in 1090 Ramakrishnan Chettiar purchased the rights under the mortgages of 1070 and 1075 and the purakkadom rights in execution of the decree he had obtained against John David. After the execution sale in his favour Ramakrishnan Chettiar took two more purakkadoms, Ext. D in 1093 and Ext. E in 1103, and then he executed a gift deed in favour of his daughter Chellamma conveying too her all the mortgage and Purakkadom rights he had.
In 1110 Oorumatom, the Jennii of the plaint properties, filed O. S. 1045 of 1IJO, for the arrears of michavarom accrued after 1106, the renewal fees payable in 1102 and Aradianthiram fees payable in 1106 and 1107 (see Ext. K, copy of plaint in O. S. 1045) and obtained Ext. G decree on 1-7-1110. Kali Pillai Velayudhan Pillai and Kali Pillai Krishna Pillai (i.e. the two mortgagors) and Ramakrishnan Chettiar and his daughter Chellamma were defendants 1 to 4 in O. S. 1045.
After this decree was passed Chellamma executed Ext. F assignment on 23-9-1111 in favour of defendant 1 conveying to her the mortgage and purakkadom rights comprised in Exts. A to E. The consideration for Ext. F was 12450 fanams. It was stated in Ext. F that the Jenmi had filed two suits, O. S. 1045 and O. S. 1726 of 1110, for the arrears of dues payable to him and that the said suit's were pending trial; and a sum of Rs. 25/- (fanams 175) out of the consideration for the assignment was reserved with defendant 1 for payment towards the discharge of the claims in those two suits.
Exts. G and K show that O. S. 1045 of 1110 was filed for the recovery of the dues payable in respect of present plaint items 1 to 3 (which were items 1 and 2 in that suit) and another property which was item 3 therein. On 5-5-1115 item 3 in O. S. 1045 of 1110 was sold in execution of the decree therein and purchased by the decree-holder for a part of the decree amount. After the confirmation of this execution sale the decree-holder assigned the right to the balance decree amount to Bhaskaran Nair by Ext. VII dated 1-7-1115.
Bhaskaran Nair then attached plaint schedule items 4 to 7 also, and for the balance decree amount; due under Ext. G he purchased in execution of that decree the equity of redemption of plaint schedule items 1 to 7 subsisting after the mortgages of 1070 and 1075 and the purakkadoms Exts. C to E. This execution sale was on 4-12-1115, and about three years later Bhaskaran Nair executed Ext. X assignment in favour of defendant 1 on 11-8-1118 conveying to her the equity of redemption he had purchased in the execution sale.
9. The plaintiff's case is that the mortgagee was bound both in law and under the terms of Ext. B to pay the claim sued for and decreed in O. S. 1045 of 1110; that, as defendant 1 had obtained the mortgage right; by the assignment, Ext. F, taken by her, besides the obligation she had as mortgagee to discharge the said decree-debt she was bound to discharge the same on account of the direction in Ext, F and the reservation of 175 fanams with her for the purpose; that with a view to obtain the equity of redemption also for herself she neglected her obligation and defaulted to discharge the decree-debt and obtained an assignment of the decree benami for her in the name of Bhaskaran Nair and caused the equity of redemption to be sold and purchased by him in execution and then took the assignment, Ext. X, from him of his nominal rights; that she has thereby gained an advantage in derogation of the rights of the mortgagors; and that the equity of redemption thus obtained by her has to be held by ner for the benefit of the mortgagors under Section 90 of the Trusts Act.
It is also urged on behalf of the plaintiffs that even if Bhaskaran Nair was not a benami-dar for defendant 1 the assignment of his rights obtained by her has to be held by her for the benefit of the mortgagors under Section 90 inasmuch as the execution sale and the purchase of the equity of redemption by Bhaskaran. Nair were brought about by the default of defendant 1 to discharge the decree-debt as she was bound to do.
10. The direction in Ext. B regarding payment of the dues to the Sirkar and the Jenmi has been extracted in paragraph 8 above. What is directed in Ext. B to be paid by the mortgagee is only 'Karam' and nothing more. The term 'Karam' ordinarily means tax, and used in relation to the Sirkar it means the tax payable to the State. Used in relation to a Jenmi that term means the annual michavarom payable to him by the Kudiyan and does not include the renewal fee payable by the Kanomdar once in 12 years for renewal of the Kanom, which is of the nature of a capital payment and not a revenue payment, or Aradianthiram fee payable for certain special ceremonies in the Jenmi's family which is of the nature of a casual payment.
In the absence of a special agreement the mortgagee is bound to pay only the annual; michavarom and not the renewal fee and Aradianthiram fee, and the renewal fee and Aradianthiram fee have do be paid by the mortgagor. The mortgagee was not therefore bound to discharge the whole claim sued for and decreed in O. S. No. 1045. Only for a part of the claim in that suit was the mortgagee liable, for the balance the mortgagors alone were liable.
Further, no part of the arrears of michavarom claimed in O. S. 1045, was caused by defendant 1. She obtained Ext. F assignment only in 1111. The arrears of michavarom claimed in that suit were for the years 1107 to 1110. The amount reserved with her under Ext. F was also wholly insufficient to pay the balance decree debt or even the arrears of michavarom. Even the arrears of michavarom amounted to several times the amount reserved with her under Ext. F for payment to the decree-holder in O. S. 1045 of 1110.
D.W.1, a retired Additional District Judge, who is the husband of defendant 1, swears that he tendered to the Jenmi the amount of Rs. 25 reserved with defendant 1 under the terms of Ext. F, that the latter refused to accept it because it was insufficient to discharge the whole decree amount and insisted on being paid the whole decree amount, that he therefore sent for defendants 1 and 2 and informed them of the refusal of the Jenmi to accept the amount of Rs. 25 and asked them to make necessary arrangements for discharging the decree and that although they promised to arrange for the discharge of the decree they did not pay any amount and discharge the decree debt.
P.W. 1's evidence about this matter is to say the least very unsatisfactory. Having regard to the nature of P.W. 1's evidence and e extreme improbability of a person like D.W. 1 giving false evidence in such a trivial matter, we believe D.W. 1's evidence referred to above and are convinced that after taking Ext. F assignment defendant 1 did all that was possible for her to discharge the mortgagee's liability for paying the michavarom of the properties and her own liability to pay the amount reserved with her under the terms of Ext. F, and that she has not committed any default in this matter.
D. W. 1's evidence, which we believe shows that defendant 1 had not even the least vestige of an intention to obfain an advantage over, or in derogation of the rights of, the mortgagors and that therefore the properties were sold in execution she did everything that was possible for her to safeguard the mortgagors' rights without incurring further loss to herself for that purpose. She cannot be blamed if she was not prepared to advance further amounts and discharge also that parti of the decree debt in O. S. 1045 of 1110 which she was not bound to pay for protecting the interests of the mortgagors, especially after she had appraised them of all the facts.
11. It is also not possible to accept the plaintiffs' case that Bhaskaran Nair was a be namidar for defendant 1. P. W. 1 said at first that Bhaskaran Nair was defendant 1's brother. Later, he said that he was a cousin, D.W. 1 denied that Bhaskaran Nair is defendant 1's brother. From his evidence it would appear that Bhaskaran Nair is a distant relative of defendant 1, being a member of the same tarwad.
The allegation that Bhaskaran Nair had no means to take the assignment is also groundless, for he seems to be a Government servant getting a monthly pay of Rs. 80. Bhaskaran Nair's conduct in attaching items 4 to 7 and bringing to sale only the equity of redemption when he was entitled to sell the full right over the properties was referred to by the appellant's learned counsel as a circumstance tending to show that he was a benamidar for defendant 1. No doubt this conduct would suggest that he did not desire to cause injury to defendant 1.
That by itself would not amount to conclusive proof of the benami nature of the assignment taken by him. The burden to prove that the assignment taken by him was benami for defendant 1 was on the plaintiffs. They have not chosen to call and examine Bhaskaran Nair as a witness. P.W. 1's evidence that Bhaskaran Nair is defendant 1's brother is absolutely false. Equally groundless is the allegation that he had no means of his own to take the assignment.
probably he might have discovered after he took the assignment that defendant 1 had a mortgage right in the plaint properties and then, as she was a member of his tarawad, he might have desired to cause no injury to her if he could realise his money otherwise, and so he might have attached plaint schedule items 4 to 7 also and sold the equity of redemption alone of all the plaint properties.
Having regard to all the circumstances of the case we are not satisfied that Bhaskaran Nair was a benamidar for defendant 1. The execution diary shows that there was nothing clandestine or fraudulent in the execution proceedings and that it was after due notice to all the judgment-debtors, including the mortgagors, that Bhaskarau Nair purchased the equity of redemption on 4-12-1115. It was only about three years later, on 11-8-1118, that he sold his rights to defendant 1 by Ext. X.
12. Numerous cases were cited by the appellant's learned counsel in support of the proposition that when a mortgagee defaults, to make a payment he was bound to make and the mortgaged property is consequently sold in execution of a decree or under the Revenue Recovery Act and the mortgagee either purchases it at the execution sale or the Revenue sale in the name of a benamidar for him or purchases it from a bona fide purchaser in execution, Section 90 of the Trusts Act would be attracted and the mortgagee has to hold the property for the benefit of the mortgagors and has to submit to redemption by them.
This proposition is perfectly sound, but in the light of the conclusions we have arrived at above as to the facts of the present case it can have no application here. Section 90 does not strike clown every advantage gained by a mortgagee. For attracting section 90 the advantage should have been gained by him availing himself of his position as a mortgagee or because he was the mortgagee and it must have been gained in derogation of the right of the mortgagor.
As pointed out in Aggarwala's 'Indian Trusts Act, 1954 Edition, (page 626), the basis of the rule stated in Section 90 is that a trustee ought not to be permitted to make a profit out of the trust, and a mortgagee is a constructive trustee for the mortgagor. It is because of his default to make the payment he was bound to make as a mortgagee that the mortgagee derives an advantage when he purchases the mortgaged property at the execution or revenue sale which takes place as a result of his default and it is because the advantage so gained by him is unfair and in derogation of the rights of the mortgagor that he is compelled by the Section to hold the advantage gained by the violation of the trust to the benefit of the persons who had reposed the trust in him.
In the present case, defendant 1 was not the mortgagee at the time the michavarom was allowed to fall into arrears nor when the suit for the arrears of michavarom was filed and decreed. She was not therefore bound as mortgagee to pay the arrears of michavarom for the realisation of which the plaint properties were sold. Nor was she bound as mortgagee to pay the renewal fee and Aradianthiram fee decreed in O. S. 1045 of 1110.
Apart from the direction in Ext. F to pay 175 fanams towards the discharge of the claims in O. S. 1045 of 1110 and O. S. 1726 of 1110 there was no obligation at all on the part of defendant 1, either in her capacity as mortgagee or by virtue of the liability undertaken by her under Ext. F, to pay any part of the decree amount in O. S. 1045 of 1110. So far as the undertaking in Ext. F is concerned, she did everything she could do and it was not on account of her default but the default of the mortgagors themselves that she could not perform that undertaking.
When she found that she could not perform the undertaking in Ext. F because of the mortgagors' default she gave them due notice and requested them to arrange for the payment of the balance for which they were liable and thus enable her to perform her part of the undertaking, and although they promised to do so they defaulted subsequently. This is not therefore a case in which the execution sale was brought about by the violation of any trust placed in defendant 1 either as a mortgagee or on account of the agreement in Ext. F, and she was also not liable for any part of the amount for which the properties were sold.
As the sale was not brought about by any default of defendant 1 and the debt for which the properties were sold was not one for which she was liable, she had the right to purchase the properties at the execution sale like any other person even though by the time of the execution sale she had obtained the mortgage right. Therefore, whether Bhaskaran Nair was a benamidar for defendant 1 or not (our finding is that he was not a benamidar for her), neither the execution sale in his favour nor the assignment, Ext. X, executed by him in her favour would accrue to the benefit of the mortgagors.
13. The view we have taken above is supported by the decision in Parvathi Amma v. Cheriyan, AIR 1951 Trav.-Co. 94 (B); and Govindarajam Pillai v. Alagappa Chettiar, AIR 1943 Mad 202 (C). In the former case the following dictum in 30 Trav. LR 105 (D), was quoted with approval and followed by Sankaran and Gangadhara Menon, JJ :
'It is not an absolute rule that a benefit or interest acquired by a mortgagee over the mortgaged property, in all cases and whatever the circumstances be, must be held in trust for the benefit of the mortgagor. If the mortgagee, by fraud or unfair or sharp practice, or behind the back of the mortgagor, obtains an advantage to the prejudice of the right of redemption, which, though not legally due under, has yet its root in, the mortgage, that advantage must be held for the benefit of the mortgagor. But it is open to the mortgagee to show that he acquired the advantage by the mortgagor's consent, or after a contest with him before the grant of the advantage, or otherwise so openly and fairly that he is equitably entitled to Keep it.'
The observation in this dictum
'But it is open to the mortgagee to show that he acquired the advantage by the mortgagor's consent, or after a contest with him before the grant of the advantage, or otherwise so openly and fairly that he is equitably entitled to keep it'
is peculiarly applicable to this case in the light of D. W. 1's evidence that on the Jenmi's refusal to accept Rs. 25/- when he tendered it to him in pursuance of the recital in Ext. F and following the Jenmi's insistence that he should be paid the whole decree amount D. W. 1 sent for the mortgagors and informed them of those facts and requested them to arrange for the discharge of the whole decree debt and that in spite of their promise to do so they did not make any arrangement to discharge the debt and so, the properties were ultimately brought to sale. We have already said that we believe the evidence of D. W. 1.
His evidence shows that it must have been with the mortgagors' consent or acquiescence that the properties were brought to sale, or at any rate, that it was openly and fairly that the execution sale took place, and defendant 1 obtained Ext. X assignment from the auction-purchaser of his rights under the Court sale. In AIR 1043 Mad 202 (C), Krishnaswami Ayyangar, J. laid emphasis on the breach of the fiduciary relationship between the mortgagor and the mortgagee being the most essential requisite for attracting Section 90 to a purchase of the mortgaged property by the mortgagee. The learned Judge says at pp. 205 and 206 of the report in that case :
'Neither can the appellants derive any assistance from Section 90, Trusts Act. Though there is no express reference to it, it is clear that the relationships enumerated in the section are all of them of such a character that they may give rise to a conflict of duty and interest in certain circumstances; in other words, a fiduciary relationship is implicit in the section, and is the basic ground on which relief is to be afforded, provided of course the conditions laid down are satisfied.
Before the benefit of the section can be demanded, it must be shown that (1) the party against whom relief is sought availed himself of his position, (2) he gained an advantage by so doing, and (3) the advantage was gained in derogation of the rights of the person interested in the property. It is perfectly plain to our mind that respondent 1 was in no sense in a fiduciary position in so far as the appellants are concerned.
It is equally plain that, in purchasing the property at the revenue sale, he cannot be deemed to have availed himself of any special position he held. If, as we hold, these two conditions are not satisfied, the fact that he has gained an advantage to the prejudice of the appellants cannot afford them any ground of relief. When the Government brought the property to sale, any stranger could have purchased it and obtained a clear title incapable of being assailed by anybody. We cannot see why a mortgagee should be held to be in a worse position, so long as the sale was not due to any wrongful conduct on his part,'
We are in respectful agreement with these observations and hold that the same principles govern the present case also.
14. It follows that the execution sale of the equity of redemption of the plaint properties in O. S. 1045 of 1110 and the assignment, Ext. X, of the rights under that sale executed by Bhaskaran Nair in favour of defendant I do not enure to the benefit of the mortgagors, that the rights under the said sale and assignment belong to defendant 1 alone, and that, as she has obtained the equity of redemption of the plaint properties under the said sale and assignment neither the plaintiffs nor other members of the tavazhis of the defunct Vazhapalli tarwad have any right to redeem and recover possession of the plaint properties from her.
15. In the view we have taken about the right of defendant 1 to the equity of redemption it is not necessary to consider in this appeal whether all the co-owners of the equity of redemption -- if the Court sale in Bhaskaran Nair's favour and Ext. X are to be deemed as enuring to the benefit of the mortgagors -- have been impleaded in this suit.
16. Although what has been said above is sufficient to dispose of the appeal, reference has to be made to one more question as there was considerable discussion at the Bar about it. According to the plaintiffs, Ext. B is supported by consideration only to the extent of 1300 fanams and the mortgagee has not paid the sum of 4000 fanams reserved thereunder with him for subsequent payment.
The omission or inability on the part of defendant 1 to produce the receipt for payment of this amount has been commented upon by the appellant's learned counsel as proof conclusive of the non-payment of the amount. We are unable to accept this contention. The suit was filed in 1122, forty-seven years after the execution of Ext. B. The reserved amount had to be paid by the mortgagee John David. Ramakrishna Ghettiar had to file a suit against John David for amounts due to him from the fatter, and it was by the sale in execution of the decree in that suit that Ramakrishna Chettiar obtained the mortgage right.
John David, whose mortgage right was thus attached and sold was not likely to give to his judgment-creditor at the time of the execution sale the receipt for the payment of 4000 fanams made by him. Ramakrishna Chettiar subsequently assigned his rights to Chellamma and it was from Chellamma that defendant 1 obtained Ext. F. In the circumstances, defendant 1's omission or inability to produce the receipt cannot be taken as conclusive evidence of non-payment of the amount.
On the other hand, there are strong reasons to think that the amount of 4000 fanams reserved under the terms of Ext. B must have been made. Four years after the execution of Ext. B Kali Pillai Velayudhan Pillai and Kali Pillai Krishna Pillai themselves executed Ext. C purakkadom in favour of John David. They were not likely to execute such a purakkadom if the recital in Ext. B had not been paid. There is also no mention of the alleged nonpayment in Ext. C.
In the purakkadoms of 1093 and 1100 also (Exts. D and A) there is no mention of any non-payment of the amount reserved under Ext. B. From these circumstances we are satisfied, and we hold, that the reserved amount has also been paid and that Ext. B is fully supported by consideration,
17. For the reasons stated above, the decree of the lower Court dismissing the plaintiffs' suit is confirmed and this appeal is dismissed with costs to defendant 1.