1. The assignor of the plaintiff obtained a mortgage from the jenmi in 1893. In 1894, the said mortgagee sub-mortgaged a portion of the properties to the predecessor-in-title of defendants Nos. 1 to 3 (Exhibit A). The Government revenue due upon the property fell into arrears, and it was put up to sale. One eressan Nair, who, it is alleged, was only a benamidar for the sub-mortgagee, purchased it in 1900. There was a partition among the members of the sub-mortgagee's family, and the property in dispute fell to the share of the 2nd defendant. Defendants Nos. 4 and 5 have purchased it from the 2nd defendant. Plaintiff, claiming to stand in the shoes of the mortgagee, sues to redeem; the Courts below have given him a decree.
2. We are unable to agree with the conclusion at which they have arrived. The deed of mortgage, Exhibit B, distinctly provides that the Government revenue shall be paid by the mortgagor, the jenmi. Reference to this document is made in Exhibit A, which sub-mortgages only a portion of the property covered by Exhibit B. We are, therefore, of opinion that Section 76, Clause (c), Transfer of Property Act, is not applicable. The mortgagor did enter into 'a contract to the contrary', namely, that the revenue need not be paid by the mortgagee in possession. The sub-mortgagee was asked in his deed to pay the jenmi only the rent payable by the mortgagee. 'The contract to the contrary' in Exhibit B must be taken to have been incorporated in Exhibit A. Consequently, there was no obligation on the part of defendants Nos. 1 to 3 to pay the arrears, although they were entitled to do so, if they liked. See Sadanand v. Ratanaji (1886) Bom. P.J. 68.
3. The lower Appellate Court quotes Nawab Sidhee Nuzur Ally Khan v. Rajah Ojoodhyaram Khan 10 M.I.A. 540 : 5 W.R.P.C. 83 : 1 Suth. P.C.J. 635 : 2 Sar. P.C.J. 198 : 19 E.R. 1076 for holding that the defendants are not entitled to rely upon the revenue sale. That case has no application to this second appeal. It was found in that case that the mortgagee, who was bound to protect the property from sale, wilfully made default in paying the revenue and was also guilty of other fraudulent acts. In the present case it was conceded that the only fraud alleged and proved is the non-payment of the arrears of revenue. We have found that as there was a contract to the contrary, the sub-mortgagee was not bound by law to pay the arrears. Consequently the purchaser was not guilty of any fraud. As the mortgage is no longer subsisting, the plaintiff is not entitled to redeem. We ought to point out that the jenmi is no party to this litigation.
4. On the ground that there is no mortgage to be redeemed) we must reverse the decrees of the Courts below and dismiss the suit with costs in all the Courts. The claim for arrears of Purappad, if any, will not be affected by this decision.