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1955 DIGILAW 35 (MAD)

Minor Pechi. v. Perumal Thevar.

1955-02-04

GOVINDA MENON

body1955
Judgment The plaintiffs are the legal representatives of one Mayandi Thevan, who executed a usufructuary mortgage, Exhibit A-1, dated 4th May, 1917, in favour of one Viruma Thevan for Rs.166. The mortgage document recited that the mortgagee should cultivate the land, and pay the interest on the mortgage money out of the usufruct as well as the Government revenue charged on the property in question. It has to be mentioned that this Mayandi Thevan is a pattadar in the village in which he held other lands separately assessed to Government revenue. But there was a consolidated patta, which mentioned the revenue charged on each item of land with a total aggregate amount mentioned therein. In this patta there is a clear and specific mention of the revenue due on each of the items. On account of a default of Mayandi Thevan in payment of Government revenue due on other lands included in the same patta-Viruma Thevan having duly paid the Government revenue on the property in question-the suit property alone was sold for Government revenue due on other properties in revenue auction and Viruma Thevan happened to be the purchaser at that auction. The plaintiffs as the legal representatives of Mayandi Thevan seek to redeem the mortgage under Exhibit A-1 and are met by the plea of the defendants, who are the daughter and the grand-daughters of Viruma Thevan by the plea that Mayandi Thevan’s rights in the property have become extinguished as a result of revenue sale and therefore the suit for redemption has to be dismissed. The answer to this plea was that since there was a consolidated amount due under the patta, there was an obligation on the part of Viruma Thevan to pay not only the revenue due on the land mortgaged to him, but also the revenue due on the other lands included in the same patta and, as this has not been done and the suit property has been sold, Viruma Thevan cannot take advantage of the sale, which has been brought about by his non-payment of the revenue on the other lands as well. The lower Courts have accepted this contention and held that Viruma Thevan must be deemed to have purchased property as trustee for Mayandi Thevan and as such the mortgage has become extinguished and directed recovery of possession of the property. The lower Courts have accepted this contention and held that Viruma Thevan must be deemed to have purchased property as trustee for Mayandi Thevan and as such the mortgage has become extinguished and directed recovery of possession of the property. The second appeal is by defendants 2 and 3, who are two of the grand-daughters of Viruma Thevan. Mr.T.S.Vaidyanatha Ayyar for the appellants contends that it was not obligatory upon Viruma Thevan to pay the revenue due on the other pieces of land separately charged, though they are included in the same patta. Viruma Thevan having paid the revenue on his lands, there is no obligation on him to discharge the arrears of revenue due on other lands. Such being the case, the purchase by the purchaser Viruma Thevan cannot be said to be as a trustee for Mayandi Thevan. In the lower Court as well as here, reliance was placed by the respondents on certain observations of a Bench of this Court in Gunnam Dorayya v.Vadapalli Ayyama Charyulu 1. The facts of that case were that a mortgagee in addition to paying the revenue and other cesses due upon the land mortgaged to him also paid a sum of Rs.60 which represented the irrigation cesses and other cesses due upon other lands of the mortgagor contained in the same patta as the mortgaged land and claimed that such amount should be added on to the mortgage money at the time of redemption. The High Court held that since the Government revenue due upon other lands contained in the same patta issued in the mortgagor’s name is revenue due upon the mortgaged land as well, there was a liability upon the mortgagee under section 76(c) of the Transfer of Property Act to pay the same and, he having done so, is entitled to tack that amount to the mortgage money. The authority for the statement that though separate amounts are entered as the revenue due upon separate numbers held under a single patta, the demand of the Sircar and the liability of the landholder is a consolidated demand and the liability for the entire sum mentioned in the patta charged upon each item of land contained in the patta is an observation of a Bench of this Court in The Secretary of State for India in Council v. Pisipati Sankarayya 2. Relying upon these two judgments, the learned counsel for the respondents contends that there was a duty cast upon Viruma Thevan to pay the Government revenue on other lands included in the same patta and, therefore, the fact that the lands were sold in revenue auction was as a result of a default on the part of Viruma Thevan, in which case he could not take advantage of his own default and thereby claim a right in the properties purchased. I do not think that the decision in Gunnam Dorayya v. Vadapalli Ayyama Charyulu 1, goes to this extent. It has been held in Panchanatha Iyer v. Swaminatha Iyer 2 following an earlier decision of this Court, that when a revenue sale of properties is effected as a result of the mortgagee’s default in paying the revenue and on account of no default of the mortgagor, still the mortgagor’s title in the property ceased to exist and the purchaser has obtained rights by such a purchase. Therefore, if instead of Viruma Thevan being the purchaser, a third party had become the purchaser of these properties, then the plaintiffs cannot say that they have got any right to them. Does it make any difference because the mortgagee himself has become the purchaser ? 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. But here the terms of the mortgage deed, Exhibit A-1, themselves show that the liability of the mortgagee was only to pay the revenue on the property 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. Therefore it is clear that the revenue sale has not been brought about as a result of any default at the hand of Viruma Thevan. Therefore it is clear that the revenue sale has not been brought about as a result of any default at the hand of Viruma Thevan. It is next contended by Mr.Desikachari that at the time the revenue sale took place Viruma Thevan’s son-in-law happened to be the deputy karnam and therefore ¦we must infer that the sale was brought about in order to benefit Viruma Thevan and not in any public interests. Except the fact that the deputy karnam was Viruma Thevan’s son-in-law, there is nothing on record to show that Viruma Thevan had any hand in bringing about the sale. I am therefore of the opinion that Viruma Thevan’s purchase should be deemed to be on the same footing as a purchase by a disinterested third party. Then following Panchanatha Iyer v. Swaminatha Iyer 2 and Kalappa v. Shivayya 3, I have to hold that the purchase by Viruma Thevan has extinguished the rights of the mortgagor Mayandi Thevan and that Viruma Thevan is not a trustee for Mayandi Thevan at all. The Plaintiffs, therefore, have no further rights to the suit property. The Second Appeal is therefore allowed and the suit dismissed with costs in the trial Court and in the lower appellate Court. In this Court each party will bear his own costs. No leave. R.M. ----- Appeal allowed.