Decided on December 30,1955

N. Velayudha Panicker And Anr. Respondents


Nandana Menon, J. - (1.) THIS Second appeal is by their first Defendant in the suit being One for redemption and is directed against the concurrent findings of the lower courts to the effect that the Plaintiff is -entitled to redeem 70 cents being part of Sy. No. 83/1A also covered by the mortgage. Ext. A dated 13 -9 -1095 is the mortgage sought to be redeemed. The first Defendant contended that 70 cents out of the mortgage security had been sold in a revenue auction for arrears of tax and hence .the Plaintiff, cannot claim redemption of the said portion. Now, the fact that the disputed portion was sold in revenue auction is admitted by the mortgagor. But it is urged that as the sale was due to the failure of the mortgagee to pay tax he cannot question the right of the mortgagor to redeem that portion also. The evidence clearly shows that 70 cents also was included within the property described in Ext. A. What is urged on behalf of the Appellant, is that the Survey Number of this item was not, mentioned in the mortgage deed, that hence the; mortgagee was not bound to pay the tax of this, item, that the purchase under the revenue sale W0SL by a third party, namely, by Kunjan Pillai and that it was from him that the mortgagee's son obtained an assignment. So it is contended that the mortgagor had. lost all his rights and the sale being not due to any negligence of the mortgagee no redemption of this can be claimed. Ext. A clearly stipulates that the has of the properties mortgaged was to be paid by the direction contained therein Is one regarding payment of all Sircar tax an the payment of any stipulated amount. Is ion it is admitted that this 70 cents also itained by the mortgagee under Ext. A clqwfj was a liability to pay the tax of that also. Abjection in describing the survey numbers can be taken advantage of by the mortgagee. As pointed out by the Respondent's counsel in Ouseph Kul nar v. Narayani Amma,, 1949 Ker LR 986 (A) is stated that: The essence of a transaction where the mortgagee enters into possession of properties given as security in the absence of express terms is that he would manage them with all the care and prudence with which he would manage his own properties and that the public taxes being the necessary outgoings out of the income, the balance of the net income ascertained after meeting the expenses of cultivation will be appropriated towards the principal and interest in manner agreed upon between the parties. It was held there that even in the absence of any specific provision in the deed the mortgagee was bound to pay taxes. On behalf of the Appellant Pechi v. Perumal Thevar,, (1955) 2 Mad LJ 132 (B), was relied upon in support of his position that the revenue sale in the present case extinguished all the rights of the mortgagor and that the said right did not revive even when the property passed to the mortgagee himself. The facts of that case were entirely different. There the property involved in the mortgage security was sold for arrears of tax of other items of the mortgagor included in the same patta. The following observations in page 134 show that the said decision in no way supports the Appellant here: In my opinion, if the sale has been brought about as a result of any default on the part of the mortgagee then the maxim that a man cannot take advantage of his own wrong will apply. Hut hero the terms of the mortgage deed, Ext. A (1), themselves show that the liability of the mortgagee was only to pay the revenue on the properly mortgaged to him. When between the parties there is an agreement that the mortgagee need pay only the Government revenue on the properties mortgaged I do not think that because as between the mortgagor and the Government all the lands included in the patta are liable for the entire sum due thereunder the mortgagee has got any obligatory duty cast upon him to pay the Government revenue.
(2.) NARAVANA Pillai v. Raghavan Pillai,, 1953 Ker LT 566:' (AIR 1953 Ker 563) (G), fully supports the position of the Respondents. A similar question arose there for consideration. At page 573 (of Ker LT : (at pp. 566 -567 of AIR), it is observed as follows: A purchaser at a sale under the Revenue Recovery Act for arrears of land' revenue gels the property free from all encumbrances because the land revenue is the first and paramount liability on the property. If, however, the rights of such a purchaser became vested in another person whose default occasioned the sale "then the immunity from obligations that the property would have enjoyed had it remained with the stranger purchaser would cease and obligations would again attach to the property when it comes back to the defaulter. Hence it is clear that the Appellant cannot resist redemption of the 70 cents in question. So there is no merit in tin's appeal and the same is dismissed with costs.;

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