Resham Rai v. Mst. Maini Devi — 1971 DIGILAW 156 (PAT)

Judgment G.N.Prasad, J. 1. The first party defendants in a suit for redemption of an usufructuary mortgage are the appellants before me. 2. The mortgage in question was created on the 20th January, 1930 in respect of 3 bighas 6 kathas 3 dhurs comprised in plots Nos. 3955 and 3958 appertain-ing to khata No. 382 in village Simaria. The due date for redemption was 30th Baisakh 1343 Fasli, corresponding to 1936. The rental of the mortgaged property was Rs. 7/- including cess. 3. Shortly after the mortgagee, namely Ramsarup Rai, was put in possession, some persons obtained a monev decree against the mortgagors, namely Kallar Poddar and others and executed the said money decree against the mortgaged property, besides other properties of the Judgment-debtors, and auction purchased the mortgaged property and obtained formal delivery of possession thereon on the 2nd August, 1935. 4. In the meantime Kamaldhari Lal and Shamaldhari Lal of Bhagalpur, as landlords of the holding in question, instituted a rent suit against the mortgagors, namely Rent Suit No. 990 of 1933, and obtained an ex parte decree which was put into execution in Rent Execution Case No. 249 of 1934. In that proceeding, the property in question was auction sold and purchased by the mortgagee, namely Ramsarup Rai, in the name of his relation Rambhej Kumar, who obtained delivery of possession from the Court on the 30th December, 1934. 5. About six years later, on the 5th December, 1940, the present plaintiffs took a conveyance of the disputed property from the auction purchaser of the money decree and thereafter in 1959, they instituted a suit against the mortgagee auction-purchaser for recovery of possession. The plaintiffs did not, however, proceed with that suit and withdrew it. 6. Thereafter the plaintiffs instituted the present suit for redemption in the month of February, 1962. In substance, the case set up by the plaintiffs was that the mortgagee Ramsarup Rai, in collusion with the Bhagalpur landlords, got the mortgaged property auction sold in the rent execution case and purchased it himself in the benami of his relation Rambhej Kumar. According to the plaintiffs, therefore, the mortgage was still subsisting and they were entitled to redeem it, having acquired the interest of the mortgagors by virtue of their purchase made in December, 1940. 7. According to the plaintiffs, therefore, the mortgage was still subsisting and they were entitled to redeem it, having acquired the interest of the mortgagors by virtue of their purchase made in December, 1940. 7. The first party defendants, who are the appellants in this Court, are the heirs and legal representatives of the original mortgagee Ramsarup Rai and their case in substance is that the mortgage is no longer subsisting and can, therefore, no longer be redeemed inasmuch as Ramsarup Rai had made the purchase in Execution of rent decree, in consequence of which the entire holding had passed and his character as a mortgagee had become merged with the interest of the mortgagors in the mortgaged property, with the result that the mortgage stood wiped out in the eye of law. 8. The trial Court dismissed the suit, holding that the sale in execution of the rent decree was a rent sale and, therefore, the mortgage stood extinguished on the ground that the mortgagee had acquired the mortgagors interest by operation of law. The lower appellate Court, however, has taken a contrary view, holding that the decree obtained in Rent Suit No. 990 of 1933 was a money decree, and not a rent decree, and the execution proceeding in pursuance thereof was a money execution and not a rent execution. 9. In paragraph 11 of its judgment, the lower appellate Court has given a number of reasons in support of its conclusion that the decree that was passed in Rent Suit No. 990 of 1933 was not a rent decree. Relying upon Ext. 1 (2), which was the extract of the relevant suit register, the learned Subordinate Judge has observed that neither Kallar Poddar, the tenant mortgagor, nor the co-sharer landlords, except the Bhagalpur landlords, were parties to the rent suit. The learned Subordinate Judge observed that there was nothing on the record to show as to how and when the holding of the Khata in question had been split up and its rent apportioned out among the various landlords, with the result that only the Lalls of Bhagalpur had become the sixteen annas landlords in respect of the two plots in suit. So far as the suit register Ext. I (2) is concerned, the learned Subordinate Judge has fallen in at least two patent errors. So far as the suit register Ext. I (2) is concerned, the learned Subordinate Judge has fallen in at least two patent errors. The learned Subordinate Judge does not seem to have been aware of the Civil Court Rules. Rule 445 in part VI of the First Volume of the Civil Court Rules (Civil) framed by this Court provides for the maintenance of different kinds of suit registers. The suit registers have to be maintained in the Form known as Form No. (R) 1 laid down at pages 78-79 of the 2nd Volume of the said Civil Court Rules. There is a foot-note to this Register which is in the following terms: "Where there are numerous plaintiffs or numerous defendants, the name of the first plaintiff only or the first defendant only, as the case may be, need be entered in the register." It is strange indeed that the learned Subordinate Judge should have been unaware of this requirement of the suit register, for he has observed that the suit register Ext. I (2) "does not show that other co-proprietor-landlords had even been made pro forma defendants in the suit." In the same paragraph it has further been observed: "The Ext. 1/2 further shows that the rent suit had been filed against Ramsarup Bania and others S/O Dhautal Bania deed only whereas among the tenant-mortgagors there wore Kallar Potdar son of Mahgo Potdar for self and his minor sons Banaresi and Saukhi too who had clearly been left out from being impleaded in the suit No. 900/33." Merely from the circumstance that the names of all the plaintiffs or the defendants did not find place in the relevant column of the suit register Ext. I (2), the learned Subordinate Judge could not have been justified in holding that the requirements of a rent decree or rent execution had not been fulfilled. 10. In this connection it is also strange to find that the learned Subordinate Judge ignored the entry in Column 21 of the Suit Register Ext. I (2), the learned Subordinate Judge could not have been justified in holding that the requirements of a rent decree or rent execution had not been fulfilled. 10. In this connection it is also strange to find that the learned Subordinate Judge ignored the entry in Column 21 of the Suit Register Ext. I (2), where three names were entered as persons against whom the execution proceeding had been taken out, namely Ramrup Bania, Mahabir Bania and Kallar Bania, Evidently, therefore, it is impossible to uphold the decision of the learned Subordinate Judge as to the character of the decree or the execution in the rent suit on the assumption that all the relevant persons or Kallar Bania himself had not been made parties to those proceedings, 11. In paragraph 11 of his judgment, the learned. Subordinate Judge has also wondered as to how only the Bhagalpur landlords could have figured as the sixteen annas landlords in respect of the holding in question. In that connection he has observed: "There is nothing on record to show that during those brief three years there had been any Collectorate Batwara of the tauzies concerned as a result of which only the sons of Tilakdhari Lal of Bhagalpur had become the 16 annas landlord particularly in respect of the two plots in suit." If only the learned Subordinate Judge had looked into the copy of the sale certificate (Ext. M) relating to the rent execution case in question, he would have found the answer to all the doubts which he entertained in his mind. Ext. M indicates not only that Kallar Bania was one of the judgment-debtors, but also that Kamaldhari Lal and Shyamaldhari Lal decree-holders were the sixteen annas land-lords of the Khata in question, the Batwara Khesara of Plots Nos. 3955 and 3958 being 2971 and 2974 respectively. In these circumstances, it is difficult to uphold the conclusion of the learned Subordinate Judge that the decree in Rent Suit No. 990 of 1933 was not a rent decree. 12 As to what happened in the execution case, was dealt with by the learned Subordinate Judge in paragraph. 12 of his judgment where he has referred to the provisions of sections 159, 165 (3) (b) and 167 of the Bihar Tenancy Act. 12 As to what happened in the execution case, was dealt with by the learned Subordinate Judge in paragraph. 12 of his judgment where he has referred to the provisions of sections 159, 165 (3) (b) and 167 of the Bihar Tenancy Act. From the circumstances that the incumbrance in question had not been specified in the sale proclamation and not annulled subsequently, the learned Subordinate Judge has drawn the conclusion that the execution was not a rent execution, but only a money execution. This betrays lamentable lack of appreciation of the relevant provisions of the Bihar Tenancy Act. Sec.163 (3) (b), unlike Sec.163 (3) (a), does not enjoin I in case of a occupancy holding that any incumbrance thereon should be notified in the sale proclamation. Sec.167, no doubt, confers on the auction purchaser the; power to annul an incumbrance under conditions mentioned in the said section. But if in a particular case an auction purchaser does not choose to exercise this power for whatever reason, it is manifest that that cannot alter the character of the rent decree or the rent sale. It is impossible, therefore, to subscribe to the views expressed by the learned Subordinate Judge on the basis of the wrong and incomplete appreciation of the relevant factors for the purpose of determining the true character of the rights of the parties in the present case. 13. So far as the question of there being a trust within the meaning of Section 90 of the Trusts Act to govern the relationship between the mortgagors and mortgagee is concerned, it is enough to point out that in the mortgage bound itself (Vide Ext. 6/b), there was a covenant that the liability for the payment of rent in respect of the mortgaged property was to be that of the mortgagors themselves. Therefore, if the rent suit was instituted in 1933, resulting in the subsequent execution sale, then that could not have happened unless there was default on the part of the mortgagors in meeting their own obligations of paying the rent to the landlords. As in the case of Sachidanand Prasad V/s. Babu Sheo Prasad Singh, AIR 1966 SC 126 , so also here it is apparent to me that the default of the mortgagors themselves was the real effective cause of the rent sale. As in the case of Sachidanand Prasad V/s. Babu Sheo Prasad Singh, AIR 1966 SC 126 , so also here it is apparent to me that the default of the mortgagors themselves was the real effective cause of the rent sale. It is impossible to think that while the obligation of paying the rent to the landlords was on the mortgagors, any trust for preserving the mortgaged property from being proceeded against for satisfaction of the arrears of rent could have been created in the mortgagee. It will thus be seen that the question as to the true character of the decree that was passed in the rent suit of 1933 and the Court sale that was held in the execution case of 1934, is of vital importance for a correct decision of the rights of the parties in the present action. But on this important question I find myself unable to uphold the decision of the learned Subordinate Judge. There fore, there is no alternative but to send the appeal back to the lower appellate Court for a fresh decision on this point after careful consideration of all the relevant materials and factors with regard to the nature of the rent decree and the rent sale, and then to decide whether the mortgage in question has been extinguished, as claimed by the defendants first party, or is still subsisting, as claimed by the plaintiffs. I must also make a mention of what the learned Subordinate Judge has taken to be a "basic fact", namely, the mortgagees action in making the purchase in the benami of his relation Rambhej Kumar, being actuated with some "ulterior motive" and a design to put up "a mask". Perhaps, the learned Subordinate Judge was thinking in terms of the mortgagee being in collusion with the landlord decree-holders. But since the mortgagors had retained with themselves the responsibility of paying the landlords rent, there could be no collusion as suggested unless it is held, which has not been done, that the mortgagee had got the summons or the execution processes relating to the rent suit and decree fraudulently suppressed so that the mortgagors were kept utterly in the dark about those proceedings. Therefore, I find no justification for the above observations made by the learned Subordinate Judge in paragraph 9 of his judgment. 14. Therefore, I find no justification for the above observations made by the learned Subordinate Judge in paragraph 9 of his judgment. 14. The result is that the judgment and decree of the lower appellate Court is set aside and the appeal is remanded to the lower appellate Court for fresh decision according to law in the light of the observations made above. The costs will abide the result.