P L D 1957 Dacca 191 (PLP)

BADIUZZAMAN, J.‑

This appeal arises out of Title Suit No. 128 of 1948 of the Court of the Munsif, First Court. Dacca. The suit was for redemption of a mortgage by conditional sale executed by the plaintiffs in favour of the defendants on the 28th June 1935, for a sum of Rs. 125 on the allegation that the mortgage had been satisfied as a result of enjoyment of the usufruct of the mortgage property by the mortgages. The defendants admitted having possessed the property in question under a mortgage by conditional sale, but at the same time resisted the suit contending, inter alia, that the mortgage had been redeemed in Poush, 1342 B.S., on payment of mortgage dues both in cash and in kind, and that soon after the redemption the original document was returned to the plaintiffs through one Peari Matbar, after endorsing full satisfaction on the reverse thereof, and along with the return of the deed, possession of the mortgaged property also was delivered back to the plaintiffs, and subsequently defendant No. 3 as Karta of the joint family purchased the mortgaged property at. a certificate sale on the 11th June 1938, and took delivery of possession on the 25th March 1940, and since then the defendants were enjoying possession on payment of rents to the landlords as tenants and not as mortgages. It was further contended that the mortgage having been satisfied a suit f9r redemption could not be maintained. The learned Munsif on a careful survey and detailed analysis of the materials furnished by the parties negatived the plea of satisfaction and further found as follows:‑ "Regarding defendant's contention that they are in possession as purchasers in a certificate sale and not as mortgages. I should say that since they in continuous possession as mortgages, purchase by them will ensure to the benefit of the mortgagors. The mortgage deed is silent as to who was to pay the rent. Therefore, under law the defendants were liable to pay rent. It was their duty to protect the lands from sale for arrears of rent in a certificate case. Therefore, the defendants are presumed to be in possession of mortgaged property and have not in my opinion, acquired any title whatsoever as raiyat. Therefore, the plaintiffs are entitled to redeem the lands." On these findings he decreed the suit. The operative portion of the judgment runs as follows: "That the suit be decreed on contest in the preliminary form with costs. Draw up preliminary decree for redemp tion under Order XXXIV, Civil P. C. On an application in that behalf by the plaintiffs an accounting shall be taken to ascertain the amounts derived by the defendants by their possession and also to find out if the dues have been satisfied as stated." Against that decree there was an appeal which was heard by Mr. M. H. Ali, Subordinate Judge, Ist Court, Dacca. The learned Subordinate Judge accepted the Munsif's findings on all material points but he left the question of independent right as set up by the defendants open. Subject to this modification the appeal was dismissed. The order passed by him is as follows: "That the appeal be and the same is dismissed on contest with costs to the respondents, and the judgment and decree of the learned Court below are hereby confirmed subject to the modification, as discussed above, that the defendants' independent title, if any, will not be affected by this decree which will be subject to the defendant's title, if any in the suit land." Not satisfied with this judgment the defendants have preferred this second appeal. Mr. N. C. Nandi appears for the appellants while Mr. Rajendra Kumar Banik for the respondents. Two points have been urged by Mr. Nandi, the first point urged being that the lower appellate Court erred in law in holding that the plaintiffs had no locus standi to maintain the suit, and the second point urged being that the learned Subordinate Judge ought to have held that the plaintiffs could not redeem the mortgage unless they got the certificate sale set aside. Both the points having been urged with equal tenacity, I propose to take them up seriatim. The Courts below, as appears from the record, con currently found that the mortgage was not satisfied. This being a finding on a question of fact, I am not competent to touch it in second appeal. If the theory of satisfaction goes, the appeal must collapse for the following reasons: The deed in question being a mortgage by conditional sale) there is hardly any doubt that it is attracted by section 76 of the Transfer of Property Act. According to clause (c) of that section the mortgage in possession is bound to pay, the usual rent, and to protect the property from sale. If the land is sold for his default of payment and is purchased by him, it is still open to redemption by the mortgagor. In this view, I find that the first point has no substance at all. Equally unsubstantial is the second point. The second point appears to have been advanced on the authority of the Full Bench case of Uttam Chandra Daw v. Rajkrishna Dalal (I L R 57 Cal. 377). The Reference to Full Bench arose out of a suit for redemption of usufructuary mortgage and for recovery of possession of the mortgaged property. What happened in this case is, on 6th of April 1891, one Sayema Bibi, Takim Gazi and Tabrez Sirdar executed a usufructuary mortgage of the land involved in that case in favour of the appellant, to whom possession was delivered. On the some day, however, the mortgagors took settlement of the mortgaged land from the appellant, attorned to him as tenants, and thus resumed possession of the property. The mortgagors having made default in payment of the rent, the appellant brought a suit for rent against them, obtained a decree, and in execution attached the equity of redemption to be sold and purchased by himself. The sale was on 5th December 1892, and the appellant took settlement of the property in 1895. He has ever since been in possession. The mortgagors died, and on 25th April 1902, Ada Bibi, the widow of Tabrez, who was also daughter of Sayema Bibi, purported to sell the equity of redemption, and no further equity of redemption remained, and Kshitinath Bhattacharya, father of some of the defendants. On 16th May 1913, these defendants sold the land to the plaintiffs, who filed a suit on 20th November 1913. The mortgage contested the suit contending, inter alia, that he had purchased the equity of redemption, and no further equity of redemption remained, and the plaintiffs had acquired no title to the property in dispute by their purchase, and were not competent to redeem the property. The suit was decreed by the Munsif. The appeal by the defendants before the District Judge was unsuccessful except as regards interest on sums expended by the mortgages for the preservation of the mortgaged property, about which there was no specific order by the Munsif. The mortgage defendant appealed to the Calcutta High Court and the appeal was heard by Chitty and Walmsley, JJ and their Lordships referred the case to the Full Bench, consisting of Sanderson, C. J. Woodroffe, Mookerjee, Chatterjea and Newbould, JJ. One of the points that came up before their Lordships was whether the decree obtained by the defendants mortgages was for payment of money in satisfaction of a claim arising under the mortgage. It was contended on behalf of the appellant that although there was a kabuliyat in favour of the mortgages agreeing to hold the land as tenants under him, it was part of the same (mortgage) transaction and the decree, though in form a decree for rent in substance was a decree for arrears of interest due under the mortgage. This contention was overruled by their Lordships‑their view being that unless the mortgagor got the sale set aside in time his right to redeem was lost. The facts of that case being different from those of the present case, it will be prodigious mockery of justice if the plaintiffs suit be thrown out on the pro position of law laid down in that case. In the case relied on by Mr. Nandi the possession of the mortgaged property was retained by the mortgagors as tenants under the mortgage by a separate contract, the terms of which were embodied in a kabuliyat. The kabuliyat tenancy later fell into arrears and the defendants themselves purchased it in execution of a decree for rent. In that case the mortgaged property was sold not on account of laches of the mortgage but on account of laches on the part of the mortgagors. But the present case stands on a different footing. Here the property was in possession of the mortgage, and under section 76 (c) of the Transfer of Property Act it was his duty to protect it from sale, but he made default in the payment of rent with the result that the entire mortgaged property was sold. The default was deliberate and the motive behind was to create absolute right in the property. To allow this appeal, therefore, will be putting premium on fraud and dishonesty. None of the points raised having any substance, the appeal must fail and it is accordingly dismissed with costs. K. B. A. Appeal dismissed.