1. This is an appeal by the plaintiffs under Clause 15 of the Letters Patent against the judgment of Mookerjee J. dated 6-9-1950.
2. The disputed property and certain other property belonged to one Mohan Chand Choudhury. On his death the property devolved on his sons Doman, Satish and Ananta. Doman's widow is Damayanti, defendant 4. Satish and Ananta are defendants 2 and 3. In 1929 Doman as Katra of the joint family of the Choudhurys mortgaged the disputed property and certain other lands comprising about 12 bighas in favour of the plaintiffs. As the rent of the mortgaged property was unpaid the landlords instituted a suit for recovery of rent and obtained a decree and in execution thereof auction-purchased the said property on 8-6-1935. Thereafter the landlord auction-purchaser let out the disputed property about 6 bighas to defendant 1, Rupeswari, who is the mother of Satish and Ananta, defendants 2 and 3. The remaining lands viz. 6 bighas were let out to Damayanti, defendant 4. On 15-4-1940 the plaintiffs instituted a suit to enforce their mortgage of the year 1929. In that suit Damayanti, Satish and Ananta were made parties. Rupeswari, defendant 1 was, however, not made a party. The suit was decreed finally on 17-2-1942. In execution of the said decree the plaintiff decree-holders auction-purchased the mortgaged property on 25-5-1942.
The sale was confirmed on 29-7-1952 and possession was taken through court on 10-12-1942. Thereafter the plaintiffs were resisted by defendants 1, 2 and 3 in obtaining possession about the months of January, February 1943. The plaintiffs accordingly filed the present suit on 17-6-1944 for declaration of their title and for recovery of possession. The suit was confined to 6 bighas which was let out to defendant 1 Rupeswari. The suit was contested by defendants 1, 2 and 3.
3. As a result of a contested hearing the trial court dismissed the plaintiffs' suit and on appeal by the plaintiffs the judgment of the trial court was affirmed. The findings of the lower appellate court may be summarised thus: that the decree in the suit for rent and the sale held thereunder were not collusive, that defendant 1 Rupeswari took a lease on her own account from the landlord auction-purchaser and that she was in possession thereafter through her sons, defendants 2 and 3, Satish and Ananta, that the plaintiffs were not served by the landlord auction-purchaser with a notice under Section 167, Bengal Tenancy Act, and the plaintiffs' morgage was, therefore, not annulled, that the plaintiffs' claim on the mortgage bond was barred at the date of the present suit. Against the concurrent decisions of the courts below a second appeal was filed in this Court by the plaintiffs. The second appeal was dismissed on 6-9-1950 by Mookerjee J. In his judgment the learned Judge referred to what he calls 'great divergence of judicial opinion' but preferred to follow the current of decisions in recent time. The learned Judge gave the plaintiffs leave to file an appeal under Cl. 15 of the Letters Patent. The present appeal was filed by the plaintiff in pursuance of the said leave.
4. The sole question which has been canvassed in this appeal is a question of law viz., where in the case of a simple mortgage the mortgagee brings a suit on his mortgage but omits to implead a subsequent transferee in possession of a part of the mortgaged property and obtains a decree and in execution of the decree purchases the mortgaged property but fails to get possession of the part transferred, is he entitled to recover by suit possession of the said part from the transferee,
5. The plaintiffs appellants contend that he is entitled to recover possession conditional on the exercise by the defendant of a right of redemption.
6. It is not disputed that in the present case a suit on the mortgage in the plaintiff's favour was barred at the date of the present suit.
7. Mr. A. D. Mukherjee, learned Advocate for the plaintiffs appellants, contends that irrespective of the question whether a suit on the mortgage in the plaintiffs' favour was barred at the date of the present suit or not, the plaintiff can recover possession from the defendant, the latter having merely a right to redeem.
8. In support of his contention Mr. Mukherjee has referred us to a string of judicial decisions and has contended that the true view which emerges from these decisions is that the defendant who subsequently acquired the mortgaged property takes it subject to the plaintiff's mortgage and cannot resist eviction by the plaintiffs except by redeeming the latter.
9. It cannot be disputed that under Section 48, T. P. Act, 1882, a prior mortgagee has a better security than a puisne mortgagee. His title to the property, however, dates from his auction-purchase in execution of a decree for enforcement of the mortgage. The question whether the title so acquired is perfect or not depends on the frame of the suit which he initiates for enforcing his mortgage.
10. The law relating to suits on mortgages was formerly contained in Sections 85 to 90, 92 to 94 and 99, T. P. Act, 1882. These sections were supplanted by Order 34, Civil P. G. (Act 5 of 1908), hereinafter called the Code. The principal changes made, which are relevant for our purpose may be set forth as follows:
(1) the words 'in the mortgage security or in the right of redemption' occurring in Section 85, T. P. Act, have been substituted for the words 'the property comprised in the mortgage'.
(2) For the words 'must be joined' the words 'shall be joined' have been substituted.
(3) The proviso to Section 85 about knowledge of the plaintiff has been deleted,
(4) An explanation has been added in Order 34, Rule 1.
11. The effect of these alterations has been (1) to require the plaintiff to implead his co-mortgagees or holders of derivative title from them either as co-plaintiffs or as defendants to the suit; (2) join as defendants the mortgagors and persons claiming under derivative title from them; (3) to make it discretionary with a puisne mortgagee to impjead a prior mortgagee unless the case comes within Sections 61 and 67A, T. P. Act. The effect of non-joinder is now not a question of jurisdiction.
12. An important change has also been made in .Section 89, T. P. Act, 1882, viz., the words 'the defendant's (mortgagor's) right to redeem and the security shall both be extinguished' have been omitted in the corresponding rule in the Code, viz., Order 34, Rule 5. The effect of the alteration has been that while under Section 89 the effect of an order absolute for sale was to extinguish the right to redeem and the right to security (--'See Matru Mal v. Durga Kunwar', A. I. R. 1920 P. C. 79 (A)), under the Code, the security is not extinguished and a puisne mortgagee or a person interested in the right to redeem who is not made a party to the suit by a prior mortgagee can redeem only on payment of the sum due under the mortgage: -- 'Mt. Sukhi v. Ghulam Safdar Khan', A. I. R. 1922 P. C. 11 (B).
13. The question before us being whether the auction-purchaser under the decree in a suit by the prior mortgagee is entitled to possession or not, the relevant enquiry must be whether he has a title to present possession at the date of the suit (per Sir John Edge C. J. in -- 'Hargulal Singh v. Govind Rai', 19 All 541, (F. B.) (C).
14. In India, unlike in England, a simple mortgage merely confers on the mortgagee a right to sell the mortgaged property for realization of the mortgage money. The ownership and possession of the mortgaged property ordinarily remain with the mortgagor.
15. In the case of a simple mortgage a sale in execution of the decree in a suit to enforce the mortgage passes to the auction-purchaser the rights of the mortgagor and of the other defendants to the suit as they subsist at the date of the auction sale.
16. The result of the above discussion may be stated as follows:
If the defendants to the suit include the mortgagor and all persons interested in the right to redeem, the auction-purchaser, be he the mortgagee or a stranger to the mortgage decree, gets a complete title to the mortgaged property including a right to possession of the same.
If, however, the defendants to the mortgage suit do not at all represent the equity of redemption, the sale in execution of the decree does not pass the right of the mortgagor or of persons who are interested in the right to redeem but who are not impleaded in the mortgage suit, with the result that the auction-purchaser acquires merely the right to the security and cannot successfully sue the excluded persons for possession. -- 'Meer Muhammad Hossein Kalimuddin Meerza v. Meerza. Muhammad Amanulla', 83 Gal. L. J. 200 (D). The persons so excluded may however recover possession from the auction-purchaser if the latter dispossesses the former. The remedy of the auction-purchaser in such cases is merely to enforce the security if not already barred. -- 'Habibullah v. Jagdeo Singh', 6 Cal. L. J. 609 (E), -- Digambar Suthar v. Sujan', : AIR1929Cal233 ; --'Jagat Chandra De v. Abdul Rashid', : AIR1935Cal139 ; -- 'Guruprasad v. Tarini Charan', AIR 1933 Cal. 634 (H); -- 'Bidhuranjan Sarkar v. Soleman Pramanik', : AIR1941Cal613 .
17. Where, however, the defendants to the suit on the prior mortgage represent only some of the persons interested in the right to redeem, the sale in execution of the decree passed in the suit merely passes to the auction-purchaser the rights of the parties to the suit as also the right to the mortgage security, but the rights of persons interested in the right to redeem, who are omitted from the suit, remain unaffected.
18. The logical result is that if the person omitted was a simple puisne mortgagee who had no right to possession, the auction-purchaser at the mortgage sale will be entitled to sue for possession, in case his possession is disturbed by the puisne simple mortgagee. -- Bijai Saran Sahi v. Rudra Bageswari Prasad', AIR 1929 P. C. 288 (J).
19. If, however, the puisne mortgagee had in execution of a decree on his mortgage, auction-purchased the mortgaged property and had gone into possession, the auction-purchaser in execution of the decree in the suit on the prior mortgage to which the puisne mortgagee was not a party cannot sue for possession, because his auction-purchase leaves unaffected the rights of the former including the right to redeem and the right to remain in possession.
20. In such a case a question may arise whether the purchaser in the prior mortgagee's suit can compel the former to redeem.
21. If at the date of the suit by the purchaser in the prior mortgagee's suit, the right to enforce the mortgage security was not barred, the court may, with a view to prevent multiplicity of suits, adjust the rights of the parties in the same suit, even though the suit- might have been framed as merely one for possession and require the defendant to redeem the prior mortgage. If, however, the claim of the prior mortgagee was barred at the date of the suit, the court will not compel the defendant to redeem merely because the defendant's purchase was subject to the right of redemption of the prior mortgagee. The reason is that redemption is a privilege and not a liability -- 'A. I. R. 1929 P. C. 288 (J)', and that it would be unjust to compel the defendant to redeem the mortgage which had become barred. The auction-purchaser under the decree in a suit, by the prior mortgagee cannot make a grievance because it was he who had failed to comply with the statutory obligation imposed under Order 34, Rule 1 of the Code by not jmpleadtng the defendant who was a person interested in the right to redeem.
22. In some cases a qualification on the above rule, based on the doctrine of 'lis pendens' has. been introduced. Thus it has been held that where during the pendency of a suit by a puisne mortgagee, the prior mortgagee obtains a decree on his prior mortgage without impleading the puisne mortgagee and purchases the property, the iatter acquires the mortgagor's right but is liable to redeem the puisne mortgagee. -- 'Ram Sanehi Lal v. janki Prasad', : AIR1931All466 ; -- 'Muhammad Jaman Mia v. Akali Mudiani', : AIR1943Cal577 .
23. A question of some nicely arises where the suit on the prior mortgage precedes a suit on the puisne mortgage but in the race for the acquisition of the right of the mortgagor, the latter succeeds. -- 'AIR 1935 Gal. 139 (G)'. The present case is however devoid of such complications.
24. The view I have already expressed as regards the right of a prior mortgagee to get possession is supported by the decisions in -- '19 All 541 (P. B.) (C)', -- 'Aghore Nath Banerjec v. Deb Narain Gum', 11 Cal. W. N. 314 (M) -- 'A. I. B. 1831 All. 458 (F. B.) (K); -- 'Nihar Mala Debi V. Saroje Bandhu', A. I. R. 1933 Cal. 728 (N); --'Dhapubai Mini v. Chandranath Chakravarti', : AIR1938Cal524 ; -- 'Sailendra Nath v. Amaren-dra Nath', : AIR1941Cal484 , -- 'Ganga Prasad Singh v. Mt. Ganeshj Kuer', AIR 1944 Pa 119 (Q).
25. I shall now deal witli the cases to which our attention was drawn by Mr. Mukherjee. In the case of -- 'Har Pershad Lal v. Dal Mardan Saigh', 32 Cal 891 (R), the question was whether the purchaser in execution of a decree on a puisne mortgage was bound to redeem an auction-purchaser . under a decree on a prior mortgage in a suit to which the puisne mortgagee was not made a party. The case came up in the first instance before a Bench consisting of Rampini and Brett JJ. The learned Judges having differed, the case was referred to S. C. Mitra J. The learned Judge held that the title of the prior mortgagee auction purchaser was not wholly void but was merely imperfect. The learned Judge passed a decree for possession conditional on redemption by the auction purchaser in execution of the puisne mortgage.
26. The next case referred to was the case of -- 'Gangadas Bhattar v. Jogendra Nath', 11 Cal. W. N. 403 (S). This case was decided by Mookerji and Holmwood JJ. The learned Judges relied on the decision in -- 'Har Pershad Lal's case (R)', already cited, and they took the view that the rights of the competing purchasers can be adjusted in one and the same suit by permitting the purchaser in execution of the decree on the puisne mortgage the right to redeem the prior mortgagee.
27. Both the above cases were decided on the state of the law as it stood before the repeal of sections 85 to 90, 92 to 94 and 99, T. P. Act. The case of -- 'Kalu Sharif v. Abhoy Charan', A.I.R. 1921 Cal. 157 (T), as also the case of -- 'Bhagaban Chandra v. Tarak Chandra'. : AIR1927Cal259 , turned on different state of facts and are distinguishable. In both these cases the auction-purchaser in execution of the decree on the puisne mortgage was the plaintiff and was seeking to get possession from the purchaser in execution of the decree on the prior mortgage. The learned Judges were of opinion that the only right which the purchaser in execution of the decree on the puisne mortgage had in such cases, was the right to redeem. These cases do not touch the present question where the plaintiff is the purchaser in execution of a decree on the prior mortgage and is seeking to dispossess the purchaser of the equity of redemption who is in possession.
28. The case of -- 'Bhodai Sheikh v. Barada Santa Dutt', : AIR1928Cal116 is also distinguishable. In this case the plaintiff was the purchaser of the equity of redemption who was seeking to oust the purchaser in execution of a decree on a prior mortgage. The only question debated was whether the suit which was one for possession should be permitted to be considered as a suit of redemption. The Bench (Rankin C. J. and D. N. Milter J.) was of opinion that there was no bar to the suit for possession being so considered and to permit the plaintiff the right to redeem the auction-purchaser under the prior mortgage.
29. Mr. Mukherjce also referred us to the case of -- 'Subrarnania v. Seshama Raju', . This case, in my opinion, does not bear on the present question. The question which arose for decision in the case was whether a sub-mortgagee from a fourth mortgagee was entitled to execute his decree against the auction-purchaser under the decree on the prior mortgage. Their Lordships were of opinion that the plaintiff could not succeed because an opportunity had been given already to the fourth mortgagee as also to the sub-mortgagee to redeem the prior mortgages.
30. Since the appeal was argued Mr. Mukherjee has also drawn our attention to the decision in the case of -- Hemanta Kumar v. Jitendranath', : AIR1945Cal135 . This case, in my opinion, is clearly distinguishable. The facts of this case are that in 1929 a mortgage was executed in favour of the plaintiff's father. In 1932 a lease for ten years was granted by the mortgagor to defendant 1. The mortgagee obtained a decree on his mortgage in 1936. Defendant 1 was not made a party to the suit. The mortgagee decree-holder auction-purchased the mortgaged property in execution of his decree and took symbolical possession but having failed to get actual possession brought a suit for recovery of possession. The Bench was of opinion that the plaintiff could get possession subject to redemption by the defendant. It may be noted that in that suit the claim on the mortgage was not barred at the date of the suit for ejectment.
31. The decisions cited by Mr. Mukherjee are therefore clearly distinguishable. in my opinion there is no such conflict of decisions as would necessitate a reference of this matter to a Full Bench.
32. Mr. Mukherjee also referred us to a passage from Jones on Mortgage, para. 1395. The paragraph says that the right of a party interested in the equity of redemption who is not joined as a defendant in a suit on the mortgage is only to redeem and that such a person cannot maintain ejectment against the purchaser in execution of the mortgage decree. The above paragraph has to be read along with paras. 1792, 1793 of the said book. If the paragraphs are read together, the conclusion follows that if the owner of the equity of redemption either in whole or in part is not made a party to the mortgage suit a decree for foreclosure or sale would leave unaffected the rights of the excluded party including his right to remain in possession. The same view is expressed by Dr. Ghose in his law of Mortgage, 5th Edn. Vol. 1, p. 656. The view already expressed by me does not militate against the observations contained in the said treatise but receives support from the same.
33. I may add that in the following cases viz., -- 'Kristopada Roy v. Chaitanya Charan', A. I. R. 1923 Cal. 274 (Y); -- : AIR1933Cal728 ; -- 'Surendra Lal Kundu v. Ahmmad Ali', : AIR1933Cal912 ; the decision of the court was rested on the question whether the mortgagee had notice of the derivative title. In view of the repeal of Section 85, T. P. Act, the question of notice is in my opinion, not of much moment.
34. In the present case the plaintiffs failed to implead in their suit defendant 1, Rupeswari, though she was in possession as lessee from the owner of the mortgage property. The decree obtained by the plaintiffs and their auction-purchase did not therefore affect Rupeswari's right to redeem or right to remain in possession. At the date of the present suit the plaintiff's right to enforce his mortgage was barred. The plaintiffs cannot therefore compel defendant 1 to redeem his mortgage. The suit instituted by the plaintiffs was therefore rightly dismissed by the courts below and by Mr. Mookerjee J.:
35. This appeal is accordingly dismissed but in the circumstances of the case the parties will bear their own costs in this Court.
Debabrata Mookerjee, J.
36. I agree.