Authored By : Henry Reynell Holled Coxe, Nalini RanjanChatterjee

Henry Reynell Holled Coxe, J.

1. In this case it is said that the Plaintiffs father anduncle obtained by partition a separate puttee of 8 as. in Mehal Somraon. Thisseparate put he was towzi No. 41o1. About a third of the uncles half share waspurchased by the ancestor of Defendants I to 4, 9 to 11, and the othertwo-thirds by the ancestor of Defendants 17 to 24, 26 and 27. Then thePlaintiffs fathers share was mortgaged to the predecessors-in-interest ofDefendants 1 to 15, 17 to 24, 26 and 27. Subsequently the Plaintiff redeemedthe mortgage but on re-taking possession found that the Defendants hadseverally bought in holdings amounting to about a third of the raiyati land ofthe village. It is found that the holdings are not transferable without thelandlords consent. The Plaintiff sued to have the Defendants declaredtrespassers and in the alternative for possession on payment of theconsiderations for the purchases from the tenants. The first Court held thatthe purchases were accessions to the mortgaged property and gave the Plaintiffa decree on payment of the considerations. The District Judge dismissed thesuits and the Plaintiff appeals. The first point taken is that the purchasesought to be treated as accessions under sec. 63 of the Transfer of Property Act.The learned District Judge has not accepted this contention because in hisopinion the mortgagees obtained no special advantages from their position asmortgagees towards making the purchases. It is argued however that it is notnecessary that the mo taggers should have any special advantage to bring themwithin the scope of sec. 63 of the Transfer of Property Act and the case ofKishehdatt v. Mumtaz Ali L L. R. 5 Cal. 198 (1879) has been referred to. Inthat case their Lordships of the Privy Council, while "not prepared toaffirm the broad proposition that every purchase by a mortgagee of a sub-tenureexisting a the date of the mortgage must have been taken to have been made forthe benefit of the mortgagor," yet allowed the mortgagor in the circum-stancesof the case to redeem. It appears to us that in the circumstances of this caseredemption should also be allowed. It is evident that the Defendants in thesesuits as a whole were in possession of the whole estate, though differentDefendants had different interests. It is, we think, generally considered ajudicious policy for a landlord to try to convert raiyati land into what iscalled khas possession. If the Plaintiff had been in possession he would alsohave been able to pursue this policy. But it appears to us unjust that becausehe has mortgaged his interest to his fellow landlords he should find himself onthe redemption of the mortgage in his present position. His co-sharers haveacquired a third of the raiyati land of the village and whether the holdingsare transferable or not, his right, if he has any, of acquiring khas possessionof his interest in the land could not be enforced without a struggle. He has aright, on redemption, to find the village in the same condition as when hemortgaged it; and clearly it is in a condition far more prejudicial to hisinterest when a third of the land is in the possession of his co-sharers.

2. In this view of the case it is unnecessary to considerthe effect of the purchases against the Plaintiff as landlords and not asmortgagors.

3. Accordingly, we think that the Appeal should be allowed,the decision of the District Judge set aside, and that of the Subordinate Judgerestored. The latter officer, however, has omitted to fix a time for thepayment of the purchase-money by the Plaintiff. And we think that he is wrongin allowing mesne profits. Mesne profits can be set off against interest. Thecase will accordingly go back to the Court of first instance who will take anaccount of what will be due under his decree for purchase-money and fix a datefor the payment of that sum. If the sum is paid the Plaintiff will be entitledto recover possession with costs of all Courts, if not, the suit will bedismissed with costs.

Nalini Ranjan Chatterjee, J.

4. The first question to be determined is whether theraiyati land purchased by the Defendants, while they were in possession of thePlaintiffs share of the mehal, as mortgagees, are accessions to the mortgagedproperly, i.e., to the extent of the Plaintiffs share in the mehal. Thelearned District Judge was of opinion that they were not accessions, becausesome of the Defendants were co-owners of the mehal with the Plaintiff and theirposition as mortgagees did not give them any special advantage or facilities inpurchasing the land.

5. On behalf of the Plaintiff-Appellant the provisions ofsec. 63 of the Transfer of Property Act, and the case of Raja Kishendatt v.Mumtaz AH I. L. R. 5 Cat. 198 (1879). were relied on, in support of thecontention that it was not necessary that the mortgagee should have any specialadvantage, in order to entitle the mortgagor to the benefit of the accessions.

6. In the case of Kishendatt v. Mumtaz Ali I. L. R. 5 Cat.198 (1879)., certain subordinate dirt tenures within a taluk mortgaged, wereacquired by the mortgagee in possession and it was found that the mortgageetaking advantage of his position of talukdar de facto had acquired the dirtsfor very inconsiderable sums and allowed them to merge in the taluk. But thejudgment of the Privy Council did not rest exclusively on these circumstances.Their Lordships while not prepared to affirm the broad proposition that everypurchase by a mortgagee of a sub-tenure existing at the date of the mortgage,must be taken to have been U) made for the benefit of the mortgagor (forinstance a putni or mokurari tenure purchased by the mortgagee of a zamindariwith his own funds and for his own benefit), observed that the generalprinciple recognised in English law was that most acquisitions by mortgagorensure for the benefit of the mortgagee and that on the other hand manyacquisitions by the mortgagee are in like manner treated as accessions to themortgaged property and therefore subject to redemption. Their Lordshipsreferred to (among others) the case of Rakestraw v. Brewer 2 P. w 511. wherethe mortgagee of an original term in respect of certain chambers in Inns ofCourt, was granted an additional term, to commence after the expiration of theold term, as a pure personal favors and kindness to a brother bencher and whichprobably would not have been given to the representatives of the mortgagor whowere females, and the latter were allowed to redeem on the ground that theadditional term comes from the old root, and observed that the law laid down inthat case had never been impeached, and referring to the case of Doe v. Pott 2Douglas 710 (1781)., where it was held that if the lord of a manor mortgage itin fee and afterwards, pending the security, purchase and take surrender tohimself in fee of copy-holds held of the manor, they shall ensure to themortgagees benefit, and the lord cannot lesson the security by alienatingthem, said, " it is difficult to see, why as in the case of a renewablelease, the same equity should not attach to the mortgagee, particularly, if byreason of his position as mortgagee in possession he has had peculiarfacilities for obtaining the surrenders." So the fact that the mortgageein Kishendatts case I. L. R. 5 Cal. 198 (1879) had peculiar facilities for obtainingthe surrenders of the bird tenures by reason of his position as mortgagee inpossession appears to have been relied on only as an additional ground forholding that the same equity should attach to the mortgagee as in the case of arenewable lease.

7. The law as to accessions to mortgaged property in thiscountry is now formulated in sec. 63 of the Transfer of Property Act, whichprovides that where mortgaged property in possession of the mortgagee hasduring the continuance of the mortgage received any accession, the mortgagor,upon redemption, shall in the absence of a contract to the contrary, beentitled as against the mortgagee to such accession, and where the accessionhas been acquired at the expense of the mortgagee, and is capable of separate possessionor enjoyment without detriment to the principal property, the mortgagordesiring to fake the accession must pay to the mortgagee the expense ofacquiring.

8. The mortgagors right to the accession, under theprovisions of the section, does not appear to depend upon whether the mortgageehad any special advantage by reason of his position as mortgagee, in acquiringthe accession, and in this respect the section seems to go further than sec. 90of the Indian Trusts Act, under which the mortgagee holds an advantage for thebenefit of the mortgagor, only when he gains it by availing himself of hisposition as such, and in derogation of the rights of the mortgagor.

9. It is contended on behalf of the Respondents that sec. 63of the Transfer of Property Act applies to a case where the mortgagee holds theproperty only as a mort-gagee and not where, as in the present case, themortgagees held the mehal both as co-proprietor and as mortgagee, but thesection provides that where the mortgaged property in possession of themortgagee has during the continuance of the mortgage received any accession,the mortgagor is entitled to it on redemption. Had the mehal received a naturalaccession, such as land gained by alluvion, it could not be contended thatbecause the mortgagee had a share in the mehal in proprietary light themortgagor was not entitled to the accession to the extent of his proportionateshare in the mehal. The only difference between such a case and a case wherethe accession is acquired is that in the latter the mortgagor pay must to themortgagee the expense of acquiring it.

10. It is unnecessary to consider whether every purchase ofa sub-tenure by a mortgagee can be caller an accession and how far theprinciples laid down by the Privy Council in the case cited above have beenmodified by the provisions of sec. 63 of the Transfer of Property Act. In thepresent case we are concerned with ordinary raiyati holdings.

11. Under sec. 63 of the Transfer of Property Act, thequestion is, whether the property is an accession. If the lands purchased inthe present case are accessions, the Plaintiff is entitled to them to theextent of his share in the mehal.

12. The Court of first instance found upon the evidenceadduced by the Defendants themselves that the lands purchased by the Defendantshad been separated from the lands which are in the possession or the tenants,and this finding, so far as it goes, has not been set aside by the lowerAppellate Court. The Defendants, though holding different interests in themehal and in the mortgage, represented between themselves the entire interestof the landlord for the time being, when the purchases were made. There was noone else to whom the portion of the rent which was payable for the landspurchased by them, could be paid during the subsistence of the mortgage. It hasnot been found that the purchases were made by the Defendants in theircharacter as co-owners only. Under the circumstances there is no reason why thelands should not be treated as accession, and why the Plaintiff should not beentitled to the benefit of it to the extent of his share in the mehal onpayment to the Defendants of the proportionate share of the expense incurred inacquiring them. In this view it is unnecessary to consider the rights of thePlaintiff, as landlord, to khas possession of the lands.

13. The Defendants are not entitled to any interest on theamount spent by them in acquiring the lands the profits received by them shouldbe set off against the interest (see last para, of sec. 63, Transfer ofProperty Act). The Plaintiff should get mesne profits only from the date whichmay be fixed for the payment hereinafter referred to, as it has not been foundthat he demanded the lands and offered to pay to the Defendants the expense ofacquiring the lands. The decree of the lower Appellate Court will be set aside,and that of the Court of first instance restored with the modification statedabove. The case will go back to that Court for determining the amount paid bythe Defendants for acquiring the lands and it will fix a date for payment ofthe said amount, on payment of which the Plaintiff will get khas possession ofthe lands to the extent of his share in the mehal, together with costs of allCourts, and in default of such payment the suit will be dismissed with costs ofall Courts.

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Ram Brich Narain Singh vs. Ambika Prasad Singh and Ors.(26.02.1913 - CALHC)