LexBASMATI DEVI versus CHAMROO SAO AND ORS.
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7 S.C.R. SUPRElVIE COURT REPORTS 633 BASMATI DEVI v, CHAMROO SAO AND ORS. lK. SUBBA RAO, K. C. DAS GUPTA AND RAGHUBAR DAYAL, JJ J Mortgage-Execution of mortgage bonds--Liabi!ity to pay rent to both mortgagor and mortgagees-Mortgaged !ands sold for default of payment of rent-Purchase by mortgagees-If the .-right to ·redeem exists-If the principle of s. 90 Trusts Act applies -Trusts Act, s. 90. The plaintiff brought a suit for redemption of a large num- ber of usufntctuary mortgages in favour of the defendants. The ·Case of the plaintiff was•that under the terms of the mortgage bonds the mortgagees were liable to pay rent to the land lord. The mortgagees, however, defaulted in the payment of rent for .some years. A suit for arrears of rent was brought by the land lord and a decree obtained. In execution of the decree the lands were sold. According to the plaintiff, the purchasers of the mortgaged lands were only benamidars of defendants 1 and 2 and other mortgagees. The plaintiff claimed that the right of re- ·demption was not afl'ected by the Court sale because the pur- chase was for the benefit of the plaintiff. The suit was contested by defendants 1 and 2 only. Their case was that the right of re- -demption had been extinguished by the court sale; that the pur- chasers were not the benamidars of the defendants. The Trial Court dismissed the suit. On appeal, the Additional District Judge set aside the judgment of the Trial Court and passed a preliminary decree for redemption. Against this decree the two defendants appealed to the High Court. The appeal was heard by the Division Bench. Tne High Court held that in the present case s. 90 of the Trusts Act did not apply because the court sale took place due to the default oftte mortgagor as well as the mortgagees. In this view the High Court set aside the decree of the first Appellate Court and restored the decree of the trial court. Held: The fact that the mortgagor had made a default, does not alter the position that the mortgagee had also defaulted in paying the rent he was liable to pay. By his default he has con- tributed to the position that a suit had to be brought for arrears of rent,and ultimately to the position that the property was put to sale in execution of the decree obtained in the suit. This con- tribution to the bringing about of the sale was a direct result of his position as a mortgagee. When therefore he purchased the property himself at the sale in execution of the rrnt decree he clearly gained an advantage by availing himself of his position as a mortgagee. This is the position of law even if the mort- gagee's liability was to pay less than the major portion of the rent of the holdings. In this view s. 90 of the Trusts Act applies to the facts of this case. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 241 of '196L Appeal from the judgment and decree dated March 4, 1958, of the Patna High Court in Appeal from Appellate Decree No. 1335 of 1952. 1964 April 3 634 SUPREME COURT REPORTS [19641 1964 R.S. Sinha and R.C. Prasad, for the appellants. Basmati Dn·i Sarjoo Prasad and B. P. ]ha, for the respondents nos. I. v. and 2. · Okamroo Bmi a 11d Others ,April 3. 1964. The judgment of the Court was delivered Das Uupta, J. by DAS GUPTA, J.-This appeal arises out of a suit for re· demption of a large number of usufructuary mortgages in. favour of the defendants. The plaintitf who owned 1.67 acres. of lands which were recorded in Khata 56 and J0.56 acres in Khata 57 in village Sarifabad gave 1.27 acres out of Khata 56 and 8.24 acres out of Khata 57 lands in mortgage to the several defendants by separate mortgage bonds. Part of the remain- ing land was sold by him and the rest settled by him with the first defendant on Batai terms. The plaintiff's case is that under the terms of the mortgage bonds the mortgagees were liable to pay rent to the landlord. The mortgagees however defaulted in the payment of rent for some years. A suit for the arrears of rent was brought by the landlord and a decree obtained. In execution of the decree the lands were sold. The purchasers were one Besolal and Mst. Kirti Kuer, who according to the plaintiff. were only benami- <- dars of defendants I and 2 and other mortg:igees: It is his case that this purchase enured for the benefit of the mortgagor. that is. the plaintiff. and so the right of redemption of the mortga· gees has not been affected. The pr
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