BIRA NAIK Vs. MAHANTA SIDHAKAMAL NAYAN RAMANUJ DAS

JUDGEMENT

(1.) This is a pltf's appeal in a suit for recovery of possession or in the alternative for redemption of the disputed properties which have been mortgaged as a simple mtge. on 13-9-1913. The disputed lands are 19.87 acres of which 15.44 are tenanted & the rest are Khasdakhali lands. During the subsistence of the mtge. the deft, came into possession of the disputed lands under the provisions of Section 225, Orissa Tenancy Act, Binoe 27.11-1934. The present suit was instituted on 19.11-1943 with the prayer that the debt with interest at 12 1/2 p.c. p.a, that accrued due under Schedule 25 & the mtge. dues under the simple mtge. had been discharged by the date of the institution of the suit & that the pltf. was entitled to recover the properties from the deft, free of previous simple mtge. as well as of the charge created under Schedule 25. The alternative relief of the pltf. was that in case the mtge. still existed & the mtge. money or any part of it was still due he may be allowed to redeem on payment of such amount as the Ct. -deems fit & proper. Before the suit, however, while the deft, was in possession, there was default in payment of rent. The landlord sued for recovery as against the pltf. as recorded tenant. He obtained a decree & put the disputed properties to sale, The deft, mtgee. purchased them on 24 6 1937 for a sum of Rs. 129. The deft, resisted the suit on the ground that the pltf. had lost his equity of redemption, the same having been sold away at the rent decree execution sale.

(2.) The points that arise for consideration are whether the deft, was a mtgor. within the meaning of Schedule 6, T. P. Aft or, at any rate, what were his rights & liabilities as a mtgee.. under Schedule 25, or, in other words, whether he had the liabilities of a quasi trustee within the meaning of Schedule 0 read with Section 95, Trust Act. Lastly the question further arises whether his purchase will enure to the benefit of the mtgor. (pltf.) or the title acquired thereby can be retained by him, & besides whether he is liable to render account for the rents & profits that he might have received during the time of his possession.

(3.) Both the Cts. below, relying upon a decision of the Patna H. C. reported in Fekua Mahto v. Lal Sahu, A.I.R. (26) 1939 Pat. 382 : (18 Pat. 133) had overruled the pltf's. case. The proposition on which they placed reliance as quoted in a passage quoted therein is to the effect that where the mtgee in possession of a tenancy is bound to pay rent & in default the holding is brought to sale by the landlord in execution of a rent decree & purchased by him & later comes into the hands of the mtgee. the mtgor. loses his right of redemption. Quite apart from other considerations, the mtgor. no. doubt, will lose his right of redemption if, in such a contingency, the property is sold in execution of a rent decree & purchase either by a landlord, who is not a party to the mtge. or by any other person other than the mtgee. The mtgee's subsequent acquisition of the same property from the hands of the auction purchaser, whosoever he may be, can hardly be connected with any of his liabilities or rights, as a mtgee. except under certain circumstances. In the case cited, there was nothing to show that the mtgee. secured the property back form the landlord the landlord auction-purchaser by using the. advantageous position that he was occupying in respect of the property as a mtgee. The decision, therefore, has no application to the facts of the present case in which the mtgee. is himself the auction puuchaser. Mr.. Rao strenuously contends that not only is he not liable to pay rent during his occupation of the property which he got Under Section 228, but also his purchase is free of the equity of redemption inasmuch as he does not hold the position of a mtgee. within the meaning of the Transfer of Property Act nor the position of a quasi trustee within the meaning of the Indian Trusts Act. A large number of authorities have been cited toy the counsel for both sides. Before dealing with them, I should pay attention to Schedule 25, Orissa Tenancy Act. The section says that when any person having, in a tenure or holding advertised for sale, an interest which would be voidable upon the sale, pays into the Gt. the amount requisite to prevent the sale, that deposit 'shall be deemed' to be a debt bearing interest at 12 p. c. p. a. & secured by a mtge. of the of the tenure or holding to him. I lay emphasis upon the words : "shall be deemed" which necessarily means "shall be deemed as if created by the parties in the manner provided by the law," though, in fact ,. it has not been so created. The word 'mortgage' occurring in the section has non been separately defined in the Orissa Tenancy Act so as to bear any meaning other than what the word, in its technical & legal connotations would mean. 'Mortgage' is defined in the T. P. Act & the rights & liabilities of the mtgees. & mtgors. are also defined. If Mr. Rao wants to contend that the relationship of the mtgor. & the mtgee. & the position of a mtge. as created or provide! for by Schedule 25 of the Act bear any other meaning, he must have invited our attention to some such provisions either within the purview of this Act or any where else, nor has he been able to cite any authority to that effect. Subsection (o) provides that he shall be entitled to possession of the holding Or tenure as mtgee. of the tenant that is carry with it the incidents of mtgee. in possession.' This, with all certainty, means that by the provisions of the Statute & by operation of law, he becomes a mtgee, of the tenant in the same sense & to the same extent as he would be if the relationship were created in the manner provided in the T. P. Act. It is also provided that; ha shall retain the possession of it as such (as mtgee.) until the debt with the interest due thereon has been dis. charged. The words "has been discharged" occurring as a condition determining the continuance of possession must have a connation with it & the meaning conveyed is that the possession is co-relative of discharge of the debt. This leaves no doubt in my mind that there will arise two positions namely that with the profits k rents derived & derivable from the said property he should pay himself up & that he will continue in possession till the debts with interest thereon are completely wiped out. Of course, it will be open to the tenant to pay the debts earlier & recover the property. Me. Rao wants us to accept that the incumbrancer making deposit & acquiring the status of a mtgee. shall be entitled to retain the property without the liability to account for the rents & profits received by him, without liability to pay the public charges due in respect thereof till when he is paid in cash by the defaulting tenant, the amount deposited plus the interest payable according to the terms of the section at I21/2 p. c. . a. which means that the defaulting tenant for the time being forfeits the property & even though the mtgee, recovers more than l00 times the deposit with interest thereon he would still hold it on. This sort of proposition appears to me to be mons . trous. It throws to the wind any wind any idea of equity & common sense which must be presumed to be in the minds of the Legislature in enacting the provision. He goes still further to say that if the landlord sues for the arrear of rent accruing during the time of his possession & brings the property to sale & either purchases it himself or some stranger purchases it the auction purchaser shall either not be entitled to get possession from him or, if at all, shall be entitled to get possession only after he pays him up or, to use his own language, redeems him. This he argues in the face of cl. (b) of Sub-section (1) of the section which reads: ''his mtge. shall take priority of every other charge on the tenure or holding other than the charge for arrear of rent."