ACCHAIBAR MISSIR Vs. PATICHHHAN MISSIR

JUDGEMENT

(1.) This second appeal by the defendants arises out of a suit for redemption of a usufructuary mortgage bond (Ext. 1) dated 4th May, 1930, for Rs. 500/- in respect of 2 bighas 3 Khathas 6 dhurs of land. The two courts below decreed the suit. The plaintiffs had earlier executed two Zerpesgi deeds in the year 1923 (Exts. 1/a and 1/b) in favour of Lakhraj and Shivraj respectively ; one was for 13 kathas and another for 14 kathas 16 dhurs. Both these Zerpesgi deeds had been transferred to one Brijnandan Pandey by the original mortgagees Lekhraj and Shivraj. They were redeemed by the defendant-appellants with whom the mortgagor namely, the plaintiffs had left the necessary amount for redemption and they came in possession of these lands.

(2.) It appears that under the aforesaid two Zerpesgi deeds the mortgagees were liable to pay a portion of the rent of the holding. No rent was paid by the, the result was that the landlord brought a rent suit (R. S. no. 477 of 1930) for arrears of rent from 1334 fasli to 1337 fasli (1917 to 1930) and obtained a decree and levied execution but the mortgagee of Ext. 1 namely, the appellant paid the decretal amount of Rs. 82/12 annas. The mortgagee filed a suit for this amount against the mortgagors and also against the previous mortgagees. The mortgaged property was put to sale and the mortgagees, namely, the appellants themselves purchased the property at the auction sale on 7th April, 1941, and took delivery of possession on 17th January, 1943, and since then they are claiming the property as their own.

(3.) It is contended on behalf of the appellants that the courts below have committed an error of law in applying section 90 of the Indian Trusts Act, 1882 and in decreeing the suit for redemption. In my opinion, the contention is correct, section 90 runs as under : -