SACHIDANAND PRASAD versus BABU SHEO PRASAD SINGH

Citation: [1966] 1 S.C.R. 158 · Decided: 06-05-1965 · Supreme Court of India · Bench: K. SUBBA RAO, RAGHUBAR DAYAL, R.S. BACHAWAT · Disposal: Dismissed

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Judgment (excerpt)

158 
SACHIDANAND PRASAD 
v. 
-.B~BU SHEO PRASAD SINGH 
May 6, 1965 
[K. SUBBA RAO, RAGHUBAR DAYAL AND R. S. BACHAWAT, JJ.J 
• 
Indian Trusts Act, 1882 (Act 2 of 1882), s. 90 i/lustratio1J.J.G)-De-
fault to pay entire rent by 1norlgagor and a trifling part of 'ferlt by niort-
gagee--Rent decree and sale-Mortgagee purchases 1rhe · land-If niort-
gagor entitled to redee1n. 
The ancestors of the appellants created usufructuary mor.tgages in favour 
of the respondent. The mortgaged property \Vas a part of a larger hold-
ing. 
The ,mortgagee-respondent had agreed to pay a portion of the rent 
of the entire holding, and the mortgagors agreed to pay the balance rent 
payable in respect of it. 
The mortgagors defaulted for several years in 
payment of the rent. 
The mortgagee paid almost the entire amount of 
the rent but defaulted in the payment of a trilling sum. 
The landlord ob-
tained a decree for atrears of rent, and at rent sales the mortgagee pur-
chased the lands. The appellants-mortgagors filed a suit for• redemption of 
the mortgage, which was decreed by the trial court. The mortgagee ap-
pealed, \Vhich was allowed in part passing a decree for redemption of a 
small plot only on the ground that this portion of land was not sold at the 
rent sale. The mortgagors' appeal to the High Court was dismissed. 
In 
appeal by special leave, th-e mortgagors contended that the purchases at 
the rent sale and the certificate sale were made by the mortgagee by avail-
ing himseJf of his position as such as having regard to s. 90 of the Indian 
Trusts Act and Illustration ( c) to it, the purchases enured for the benefit 
of the mortgagors and they were entitled to redeem the entire mortgaged 
lands. 
HELD : 
The portion of the rent which the mortgagee failed to pay 
was so small that it was impos·sible to say that the property was brought 
to sale for it <:fr that his default was 'in any real sense a contributory cause 
of the sale of the property. 
It was not shown that non-J?ayment of the 
trifling sum by the mortgagee was made ma/a fide or with the ulterior 
objoct of the property being put up for sale and his becoming the purchaser 
of it. 
The mortgagee did not gain any advantage by availing himself of 
his position as such or of a situation brought about by his default. The 
real e.ff·.ective cause of the sa1e was the defeult of the mortgagors alone. 
(161 E-G] 
A 
B 
c 
D 
E 
F 
In the circurn:stances, s. 90 of the Indian Trusts Act and Illustration ( c) 
to it \Vere not attracted, and the purchase by the }llOrtgagee did not enure 
for the benefit of the mortgagors. The tent sale and the certificate sale 
extinguished the right of redemption. [161 G-H] 
G 
Basmat Devi v. Chamru Sao, A.LR. 1964 S.C. 1707, referred to. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 180 of 
1963. 
Appeal by special leave from the judgment and decree dated 
FebruarY, 19, 1958 of the Patna High Court in Appeal from Appel-
H 
late Decree No. 919 of 1954. 
Sar100 Prasad and B. P. Jha_, for the appellants. 
• 
• 
• 
SACHIDANAND v. SHEOPRASAD (Bachawat, J.) 
159 
A 
A. V. Viswanatha Sastri, B. K. P. Sinha and A. G. Ratna-
parkhi, for the respondent. 
• 
The Judgment of the Court was delivered by 
Bachawat, J. The plaintiffs-appellants instituted Title Suit No. 
B 91 of 1950, out of which this appeal arises, for redemption of 
two usufructuary mortgages created by plaintiff No. 1 and ancestors 
of plaintiffs Nos. 2 to 6 dated July 5, 1927 and April 15, 1928 in 
favour of the defendant for Rs. 1,000 and Rs. 1,300 respectively. 
The mortgage dated July 5, 1927 was in respect of 7 .20 acres of 
occupancy raiyati lands, consisting of four plots Nos. 149, 155, 955 
C 
and 957~ in village Hichapur under the Tikari Raj. The mortgaged 
lands were part of a larger holding of 23.69 acres under khata No. 
59, and the annual rent of the entire holding was Rs. 153-3-0. 
The mortgage deed provided that the mortgagee 
would pay 
Rs. 33-14-9 out of the total rent payable to the landlord and the 
mortgagors would pay the balance rent. 
There was default in 
D payment of rent for several years. The landlord obtained a decree 
for arrears of rent, and at the rent sale held on June 18, 1934, 
the mortgagee-defendant purchased the Hichapur lands in the farzi 
name of Dwarkalal. 
F 
G 
H 
The mortgage dated April 15, 1928 was in respect of 7.20 
acres of lands in village Utrain under kahas mahal. The mortgaged 
lands were part of a larger holding of 19.88t acres in khata

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