Trevelyan and Beverley, JJ.
1. As these two appeals arise from the same judgment it will be convenient for us to deal with them in one judgment, although the questions which have to be determined in them are different. The suit was somewhat a complicated one, but as the argument before us has been confined to matters in which the appellants in these appeals are concerned, the facts necessary to be mentioned are not many. The suit was brought to enforce a mortgage of certain properties, and all the persons interested in those properties were made parties.
2. The appeal No. 195, which was argued first, was preferred by the 9th defendant, Beni Prosad. Shortly the position of Beni Prosad was that he had purchased a dar-mokurari tenure in mehal Bhadakhra at a sale held for arrears of rent of that tenure. That tenure had belonged to the mortgagor, and in the fourth of the mortgages sued upon there were included the mortgagor's milkiat and mokurari rights in 3 annas 8 dhurs of this mehal. This mortgage was executed on the 17th February 1886, and the sale at which the appellant bought was on the 8th August 1891.
3. The first contention that was raised on the appellants' behalf was that the dar-mokurari interest of the mortgagors did not pass under the mortgage to the plaintiff. We think it clear that the description of the mokurari in that mortgage was intended to include any dar-mokurari right, and the learned Subordinate Judge has shown in his judgment how the dar-mokurari interests were treated as if they had been actually mokurari interests. The dar-mokurari, although it is a sub-lease, is a lease, and we think it clear that the mortgagors intended in their mortgage to the plaintiff to dispose of all their interest in the property.
4. The next question was contended with greater force. First of all we would point out that, assuming that this tenure was sold in accordance with Section 161 and the following sections of the Bengal Tenancy Act---a matter which we need not determine now---it is admitted that no notice was given under Section 167 of that Act. The property purported to be sold in accordance with the Bengal Tenancy Act, and the sale proclamation provides that 'the sale will be by public auction, and the right of holding the said kasth (which evidently means the tenure) will be sold with the power of cancelling all the incumbrances.' It is clear that that provision did not ipso facto, cancel the incumbrances. It is not contended before us that it did. It would, therefore, follow that under Section 167 notice must be given according to the procedure laid down in that section.
5. Mr. Bonnerjee on behalf of the appellant contended that under Section 73 of the Transfer of Property Act the rights of the mortgagor in that property were by virtue of the sale transferred to the residue of the sale proceeds after paying the amount for which the property was sold. We are unable to give the force contended for to that section. The object of Section 73, in our opinion, is to relieve the mortgagee of the effects of the injury which he would suffer by the property which was a security for his money being sold, and to give him a right over the residue of the sale proceeds. It is not intended in any way to enlarge the interests of persons purchasing at a sale for arrears of revenue or rent. If that had been the intention any subsequent provision of law providing that a sale for arrears of revenue or rent could get rid of an incumbrance would be unnecessary. It is, in our opinion, intended to refer to cases where the law has otherwise provided that the effect of a sale for arrears of revenue or rent should nullify a mortgage. There is authority for this view, namely, the decision of NORMS AND Beverley, JJ., in Prem Chand Pal v. Purnima Dasi I.L.R. 15 Cal. 546 which has been referred to by the Subordinate Judge in his judgment. This mortgage was attached to the property and was not by any process of law destroyed. It therefore follows that the plaintiff's rights in regard to it have not been touched by the sale of the tenure which was not followed up by any avoidance of the incumbrances in the way provided by law.
6. We are also asked to hold that the Subordinate Judge ought to have directed that the property, Dowlutpore Khaira, which was mortgaged to the plaintiff and was not subject to any of the other mortgages, should be first sold. This contention was put forward as an extension of the doctrine of marshalling. This is not a case which comes under Section 81 of the Transfer of Property Act. It is not a case between mortgagees, and as the effect of the appellant's purchase without avoiding incumbrances would be the same as if he had purchased subject to incumbrances, it might be an injustice to the mortgagors if any such right should be allowed, and we know of no authority which would give him such right against the mortgagees. The case of Lata Dilawar Sahai v. Dewan Bolakiram I.L.R. 11 Cal. 253 cited from the Indian Law Reports is an authority against the right contended for. This disposes of appeal No. 195, which must be dismissed with one set of costs to each of the two sets of respondents.
7. As regards the appeal No. 230, the appellant is the defendant No. 8, who was a purchaser at a sale for arrears of Government revenue of the whole of the separated share of seven annas odd of mehal Bhadakhra. This is not a separate estate, but the Government revenue was paid separately.
8. The first argument which was addressed to us was a curious one. It seems that the plaintiff happened to be a mukhtar by profession. A decree had been obtained by the defendants Nos. 25 to 29 against the mortgagors on mortgage bonds of certain property, which it is not necessary to detail here. The plaintiff in that suit, through the present plaintiff as their mukhtar, before the sale of the property which was ordered to be sold in their suit, obtained possession of the residue of the proceeds of mehal Bhadakhra after the sale for arrears of Government revenue, and with the consent of the mortgagors appropriated that money towards payment of the debt due to them. There was nothing wrong in that. The debt was due. The debtors permitted particular creditors to take this money and it was money payable to them. It may be that if the plaintiff had asserted his rights as mortgagee he might have been able to prevent such payment. But how the present appellant who paid the money for what he bought could reasonably object to what has been done it is difficult to see. He was buying subject to the mortgage of the plaintiff. He is not entitled to have a portion of what he paid for the equity of redemption applied for the purpose of paying off any portion of the mortgage. It is difficult to see how the action of the plaintiff could in any way have given rise to any equity against him.
9. Then it was suggested that compound interest ought not to be charged. The contract was for compound interest, and we are unaware that the account has been made up otherwise than correctly.
10. This appeal therefore also fails, and must be dismissed with costs.