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Hazarimull Vs. Monohar Das and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1930Cal151
AppellantHazarimull
RespondentMonohar Das and ors.
Cases ReferredGhose v. Kaminee Dosee
Excerpt:
- .....30th january 1905 and the dates when the money was deposited by the plaintiff for preventing the revenue sale. those decrees were in one suit of 1.917 and three suits of 1920.2. the plaintiff brought the suit out of which this appeal arises for the recovery of the money that he paid in march 1923 and march 1924 for preserving the properties from sale and ho asked for a decree declaring a charge for the principal amount and interest according to the provisions of the revenue silo law and also prayed that a decree may be passed to the effect that if the properties in suit be sold in execution of his mortgage decree obtained in suit no. 90 of 1918, then the plaintiff will be entitled to realize the amount claimed in the present suit out of the surplus sale proceeds to the exclusion of.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by defendant 7 which arises out of a suit to enforce a charge by the plaintiff on certain properties under the following circumstances: Defendant 7 had a usufructuary mortgage of the properties in question which belonged to defendants 1 to 6. The mortgage was made by some of them and the predecessors of others. These properties with other properties were subsequently mortgaged to the plaintiff by a deed dated 30th January 1905. Subsequent to that the mortgagors executed several other mortgages in favour of defendant 7. The plaintiff brought a suit on his mortgage which was No. 90 of 1918 and obtained a final decree on 6th January 1920. He put the decree in execution under Execution case No. 253 of 1922 but did not proceed to sell the properties mortgaged. The mortgaged properties included two revenue paying estates. There were separate accounts opened with regard to the estates for the shares belonging to the mortgagors. There was default in payment of revenue with regard to the shares belonging to the mortgagors of the revenue paying estates and the plaintiff deposited certain sums of money in March 1923 and March 1924 which included the revenue as well as cess payable on account of the mortgagors shares. In the meantime, defendant 7 obtained four decrees on the several mortgages that he had obtained from the mortgagors between 30th January 1905 and the dates when the money was deposited by the plaintiff for preventing the revenue sale. Those decrees were in one suit of 1.917 and three suits of 1920.

2. The plaintiff brought the suit out of which this appeal arises for the recovery of the money that he paid in March 1923 and March 1924 for preserving the properties from sale and ho asked for a decree declaring a charge for the principal amount and interest according to the provisions of the Revenue Silo Law and also prayed that a decree may be passed to the effect that if the properties in suit be sold in execution of his mortgage decree obtained in suit No. 90 of 1918, then the plaintiff will be entitled to realize the amount claimed in the present suit out of the surplus sale proceeds to the exclusion of defendant 7 who had other mortgages to the properties. Defendant 7 objected to the claim on the ground that the plaintiff need not have deposited the revenue as his mortgage interest would not have been affected by the sale as the sale would haw been of the separate account belonging to the mortgagors and the purchaser would get the properties subject to his mortgage. It was further argued that under the provisions of Section 9, Revenue Sale Law (Act 11 of 1859) the amount paid by the plaintiff as mortgagee cannot be added to the amount of the original lien, as the original lien has been perfected by the decree of the Court. It was further argued that in any case the plaintiff cannot have a priority over defendant 7 for these advances made. The learned Subordinate Judge has made a decree partially in terms of the prayers made by the plaintiff. He has held that the plaintiff cannot; get any charge for the cess paid but that he was entitled to a charge for the amount of revenue paid in priority over the claim of defendant 7. It ought to be stated here that certain other persons were made parties, viz., defendants 8 to 10 who have now no interest in the properties in question. The Subordinate Judge has made an ordinary mortgage decree in favour of the plaintiff as against all the defendants including defendant 7 and has not given any direction as to how the money should be realized, whether from the surplus sale proceeds on a sale being held in execution of the plaintiff's decree in suit No. 90 of 1918 or not. Defendant 7 has preferred this appeal against that decree. The mortgagors also appear as respondents but they do not contest the appeal of defendant 7 who is only resisted by the plaintiff.

3. The grounds urged on behalf of defendant 7, the appellant, are the same as taken in the Court below. With regard to the first ground, the Subordinate Judge has held that the interest of the plaintiff was endangered by the fact of non payment of revenue and he paid the money in good faith for the purpose of protecting his own interest. As the Subordinate Judge puts it, that if by sale of the share of the mortgagors in the estate the arrears had not been realized, then the Collector would have proceeded under Section 14 of the Act and if any co-sharer had refused to purchase the share in default, then the plaintiff would have no opportunity to make the deposit and the entire estate would have been sold by the Collector which would have the effect of wiping out plaintiff's mortgage. The plaintiff therefore was interested in making the deposit and he comes within the description of the person referred to in paras. 3 and 4, Section 9, Revenue Sale Law. It seems to me that the learned Subordinate Judge was right in his view. It is not necessary that the immediate effect of the sale would be such as to wipe out the mortgage. Although it is contended that even if the cosharers had refused to purchase the defaulting share, the Collector could under the law accept payment of the revenue in arrears from the mortgagee, still the mortgagee was not hound to run the risk of the Collector's refusal to accept any payment from the mortgagee after the sunset of the last day of payment. This point, therefore, must be decided against the appellant.

4. The next contention seems to me to be of more substance. Whit Clause 4, Section 9, Act 11 of 1859 provides for is that:

if the party so depositing, whose money shall have been credited, shall prove before such a Court that the deposit was necessary in order to protect any lien ho had on the state or share or part thereof, the amount so credited shall b3 added to the amount of the original lion.

5. Now, what is the remedy which is given to a mortgagee under this clause? It is the same as is given under Section 72, T.P. Act to a mortgagee who spends money for the preservation of the property as provided in that section. There also it is provided that the mortgagee in the absence of a contract to the contrary is entitled to add the expenditure incurred to the principal money. The remedy in such cases given to the mortgagee is in accordance with the decision of their Lordships of the Privy Council. In the case of Nugender chunder Ghose v. Kaminee Dosee [1866] 11 M.I.A. 241 (at p. 258) their Lordships observed thus:

Considering that the payment of the revenue bv the mortgagee will prevent the taluk from being sold their Lordships would if that were the sole question for their consideration, find it difficult to coma to any other conclusion than that the person who had such an interest in the taluk as entitled him to pay the revenue due to the Government and did actually pay it, was thereby entitled to a charge on the taluk as against all persons interested therein for the amount of the money so paid. But their Lordships are of opinion, that this is not the form in which the question comes before them, and that what they have to decide, is not whether such a charge existed or whether it does now subsist, but whether the appellant can enforce such a charge in the present suit.

6. Their Lordships next said this (and this is important for the purpose of this case):

There were two courses open to her (the mortgagee) she might have instituted a suit to enforce the mortgage and to tack to the mortgage this amount of the revenue paid by her to save the estate, and to have the estates sold to pay that amount or she might proceed under Section 9, Act 1 of 1845 (now repealed by Act 11 of 1859).

7. This list passage prescribes the procedure which a mortgage is entitled to adopt when he makes any payment for the preservation of the mortgaged property and it seems that Clause 4, Section 9, Act 11 of 1859 has been enacted in accordance with it. It cannot be said that the mortgagee can bring one suit on his mortgage and obtain a decree on it and another suit for the money which according to the provisions either of the Revenue Sale Law or of the Transfer of Property Act ho is entitled to add to his mortgage money. He must treat the whole amount which ho is entitled to get out of the mortgaged property as one entire sum if it were otherwise, then the mortgagee after obtaining a decree on his mortgage may remain idle for any length of time and by making periodical payments for the purpose of the preservation of the property may bring any number of suits to enforce his charge and obtain priority over all intermediate mortgagees by such different suits. That does not seem to me to be the right view of the provisions under Clause 4, Act 11 of 1859. When a mortgagee obtains a decree his first duty is to realize the mortgage money as soon as possible by sale of the mortgaged property and after realization the surplus proceeds may be distributed among the puisne mortgagees but by the procedure that this mortgagee has adopted he desired to squeeze out all the intermediate mortgages. I do not think that that is the meaning of the provisions of the law which entitles him to add the money paid to the amount of the original mortgage lien. It cannot be claimed as a separate debt which could have a priority over all other mortgages but such payments the mortgagee could tack to his original mortgage in a suit brought on his mortgage.

8. The result, therefore, is that the decree made by the Subordinate Judge should be modified to this extent that the plaintiff would get a decree for the money as against defendants 1 to 6 and the suit as against defendant 7 should be dismissed. The decretal amount would be a charge on the surplus sale proceeds of the properties if any after satisfying the prior mortgage decrees of the plaintiff and the defendant 7, and it may also be recovered against defendants 1 to 6 personally. Defendant 7 is entitled to his costs in this Court as well as in the Court below. The other respondents will bear their own costs.

Panton, J.

9. I agree.


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