Jha, C.J.This appeal is by the defts. first; party (hereafter to be referred to as the defts). It arises out of a suit for redemption which has been decreed by the trial Ct. by its judgment dated 23-4-1947.

2. The mtgees. are the defts. first party; the transferees of the mtgees. of a portion of the disputed land are the defts. second party & the landlords are the defts, third party.

3. Jang Bahadur Singh, who is the pltf. 1, & one Jawad Ali predecessor-in-interest of pltfs. 4 to 6, claim to be tenants of the defts. third party, in respect of a holding having an area of 20-55 acres, with an annual jama of Rs. 136 & odd, including ces3, und"r a kabuliat dated 21-12-1922. The rent of this holding having fallen into arrears, a rent Euit was instituted in 1936, being Rent Suit No. 1570 of 1936, for recovery of the arrears of rent for the years 1342 to 12 annas kist of 1343 Fasli, & a decree for rent was duly obtained ex parte on 4-1-1937 (EX. 1) of which execution was taken out, being execution case No. 1080 of 1937. While the execution case was pending, Jang Bahadur & Jawad Ali jointly executed a Sudbharna bond (Ex. A) on 20-7-1937, for Rs 800 in favour of Lalji Singh, father of defts. 1 to 3, & Sukar Singh, deft. 9. The entire holding was given in usufructuary mtge. for paying off the dues under the decree as well as the arrears of rent which accrued due after the institution of the rent suit. The money raised under the mtge bond remained with the mtgees. who, however, did not pay the dues under the decree for which execution had been taken out & consequently the holding was sold on 20-8-1937, at a ct. sale, & the landlords themselves became the purchasers, & they obtained delivery of possession on 30-11-1937. The pltfs. later on came to know of the purchase of the holding by the landlords in execution of the decree for arrears of rent & thereupon they made an appln. to the Collector on 21-7-1939, u/s. 3, cl. (1), Bihar Restoration of Bakasht Lands & Reduction of Arrears of Rent Act, 1938 (Bihar Act IX [9] of 1938) for the restoration of the holding to them.

4. The case of the pltfs. was that the holding was in the possession of the landlords after the rent sale & therefore, they were entitled to the restoration of the holding. The case was resisted by the defts. as well as the landlords on the ground that the holding had been settled with Jago Singh (defb. 2) & Sukar Singh (deft. 9) under an unregistered hukumnama dated 5-12-1937, & it was alleged that the settlement was later on confirmed by two regd. kabuliats in their favour dated 10-11-1938. The Collector in charge rejected the appln. & accepted the ease of the objectors that the appln. was not maintainable because, in bis opinion, the settlement had been made with the defts. by the landlords before 19-4-1938 & so the pltfa. were not entitled to restoration under the Act. The Divisional Commr. as well as the Board of Revenue were moved in their revisional jurisdiction, but they did not interfere with the order of the Collector in charge on the ground that his order was final. The pltfs. have, therefore, brought the present suit for redemption of the sudhbharna bond dated 20-7.1937. Their case In short, is that the settlement is fraudulent & collusive & as such, the mtge. subsists & they are entitled to redeem it. Their further case is that the defts. having taken possession of the disputed land as mtgees. the character of their possession was not changed by reason of the settlement. The case of the defts. on the other hand, is that the mtge. bond remained inoperative & that there was no fraud in the rent sale, nor was the settlement collusive. They contend, therefore, that the pltfs. have no right to redeem.

5. The trial Ct. has decreed the suit & held that the pltfs. are entitled to redeem the mtge. on payment of RS. 800. The defts. have, therefore, preferred the present appeal.

6. The questions for our consideration are (1) whether the sudhbharna bond dated 20-7-1937, was acted upon & (2) whether the pltfs. right of redemption subsists.

7. The mtge. bond in suit (Ex. A) was duly executed & regd. at Lakhisarai. (After discussing the evidence the judgment proceeds:)-I am, therefore, of the opinion that the mtgors. handed over the registration receipt to Lalji duly endorsed in his favour & the mtgees. became entitled to take delivery of the mtge. bond from the registration office & come into possession. The defts. have led evidence to show that the mtge. bond remained in the registration office. I do not fesl inclined to accept this story. Nor is it necessary to decide the question because the mtige. bond became an effective document. after its due execution & registration. In support of my view I may refer to the case of Sheikh Sultan Ahmad Vs. Syed Maksad Hussain @ Bhakur and Another, , where it has been held that

to execute a document simply means to perform what is required to give validity to a writing, as by signing & Sealing it. Delivery of the same is not an essential part of it, unless that is specifically agreed to between the parties to the deed.

It may be mentioned that the defts. admit the execution & registration of the sudhbharna bond in their presence & with their consent & it is not their case that there was any stipulation between the parties that unless the deed was delivered to the plfs. or the document withdrawn from the registration office, title would not pass; nor is there any indication in the mtge. bond itself to" that effect. In my opinion, therefore, the mtgees. acquired a legal right to possession after the execution & registration of the mtge. bond in suit.

8. The mtge. bond was for Rs. 800, The recital in the deed shows that the entire consideration money had been received by the pltfs. This recital is evidence, tough not conclusive, against the pltfs. but the presumption arising from the recital is rebutted by the fact that D. w. 5 (deft, 1) admits that only Rs. 50 was paid to the pltfs. to meet the cost of the execution & registration. Jang Bahadur, pltf. l (p. W. 5), has stated in his evidence:

We were not to get anything out of the consideration money. Out of the consideration money Lalji Singh had to satisfy the decree & rent for annas kist of 1343 & also to meet the cost of the document.

Thus the entire consideration money having been left with the defts. they were in the position of a. trustee, & a duty was cast upon them to nay the landlords dues & save the property from sale. The argument of Mr. Lai Narain Sinha is that it is not open to the pltfs, to prove that a duty was cast upon the defts, by any oral evidence. His contention is that the rights & liabilities fixed under a document can be proved, u/s. 92, Evidence Act, only by the terms of the document & not otherwise; but the argument has no force, because the document is silent on the point. Extrinsic evidence is, therefore, admissible, & the oral evidence, in my opinion, read in the light of the circumstances of the case, irresistibly leads to the conclusion that a duty was east upon the defts. to pay off the dues of the landlords.

9. The pltjs. case is that soon after the registration of the bharna bond they put the defta. in possession of the disputed land as mtgees. The trial Ct. has accepted the pltfs. evidence on the point, & I see no reason to take a different view. Jang Bahadur, pltf. 1, has stated that the bharna-dars were put in possession of the disputed land after the execution of the bharna bond & they brought the land under cultivation four or five days after its execution. This evidence gets ample support from the circumstances of the case to which I shall refer hereafter. Thus on the evidence it is clear that the defts. took possession as mtgees. & it was their clear duty to save the property from the ct, sale which took place on 20-8-1937, in execution of the rent decree. Admittedly, the landlords became the auction-purchasers & the defts. took settlement from them & are in possession of the disputed land. In my opinion, the defts., by taking the settlement from the landlords, could not change the character of their possession as against the pltfs. The defts. were clearly in the wrong in allowing the property to be sold and, therefore, if the holding has come back into their hands, they cannot take advantage of their own wrong & deprive the pltfs. of their right of redemption. It is a well known legal maxim that convenience cannot accrue to a party from his own wrong (commodum ex injuria sua memo habere debt). The principle of this maxim was applied by their Lordships of the Judicial Committee in Hunoomanpersiud v. Mt. Babooee Munraj, 6 M I. A. 393 at p. 423:(18 w. R. 81 P. C. where their Lordships have said :

But of course, if that danger arises or has arisen from any misconduct to which the lender is or has been a party, he cannot; take advantage of his own wrong, to support a charge in his own favour against the heir, grounded on a necessity which his wrong has helped to cause.

A Bench of the Madras H. C. has also pointed out that the principle underlying the maxim is almost of universal application & held that no one can be allowed to benefit by his own wrongful act (vide Vedanayagar Mudaliar v. Vedammal, 27 Mad. 591 at pp. 598-99). In my opinion, the pltfs. were wronged by the misconduct of the defts. The sale could have been averted if the defts. bad simply deposited the decretal amount which was in their hands as trustees for the pltfs. The defts. cannot turn round now & say that the pltfs. have lost their right of redemption because the old tenancy had been extinguished by the rent-sale. The Ct., in equity, cannot lend its aid to such a defence. A Bench of the Calcutta H. C. held in Kamala Kanta and Others Vs. Ananda Chandra Chakraburty and Others, that

the mtgees. cannot by suffering dispossession & having taken a new title from the landlord affect the right of the mtgors. in the property of which they were put into possession under the mtge.

The same principle was enunciated by a Bench of this Ct. in Tali Mahton and Others Vs. Lekhraj Mahton and Others, , where their Lordships have said that

the mtgee, being in possession had a certain duty to wards the mtgor. & it was his clear duty to maintain his possession as against the landlord. He could not by suffering dispossession pat an end to the tenancy & then proceed to take a settlement of the land from the landlord.

This case, was folld. by a later Bench of this Ct. in Chandi Mander v. Sitabi Bhagat, 21 P. L. T. 699, where Harries C. J. enunciated the law thus:

In short the finding la that the mtgee. reaps. Were the cause of the proceedings, A ones they had been taken, they took a settlement again from the landlords of all the Bath lands. To claim these lands now as not being lands subject to the mtge. is to claim a benefit arising from their own default, & this the law does not permit them to do. A mtgee. cannot be heard to say that land is no longer subject to a mtge, as a result of his own default or of any act on his part.

It may be observed that in the case to which I have refd. the landlords had obtained possession by the abandonment of the holding & not by rent sale, & the mtgees. by suffering dispossession came back into possession by resettlement. There is, in my opinion, no difference in principle between the case where a landlord obtains possession by abandonment & a case where he obtains possession by ct. sale. Once the land comes back into the possession of the mtgee., it is immaterial by what process of law the landlord obtained possession. Such a question becomes relevant only when the Ct. is called upon to consider the rights of the landlords & the tenants, & not when it has to consider the rights of the mtgors. against the mtgees. Therefore, the present case is governed by the principle enunciated by the Bench decisions of this Ct. to which I have refd. & the pltfs. are entitled to redeem.

10. Mr. Lal Narain Sinha has contended that, assuming that the defts. were bound to pay the dues of the landlords & they made a default which resulted in the sale of the holding, the pltfs. right of redemption was extinguished, & any later settlement taken by the defts. cannot revive the pltfs. right of redemption. His contention is that, once the property has vested in the landlords, any subsequent settlement by them with the original mtgees. would not revive the mtgors. right of redemption a3 tenants of the old holding. In support of his contention the learned counsel reld. upon two Bench decisions of this Ct. Gauri Shanker v. Sheotahal, A. I. R. 1936 Pat. 434 : (164 I. C. 213) and Fekua Mahto and Others Vs. Babu Lal Sahu and Others, . General observations made in those two cases apparently lend support to the applts. argument, but the observations must be read in the light of the facts of those cases. In my opinion, the cases reld. upon by Mr. Lal Narain Sinha are not applicable to the facts of the case before us. In Gauri Shanker Sahus case A. I. R. 1936 Pat. 434 : (164 I. C 213), the landlord purchased the holding & took possession through Ct. & served a notice upon the mtgee. u/s. 167, B. T. Act, to annul the encumbrance. Thereupon, the mtgee. brought a suit to have his mtge. right declared & impleaded the, mtgor also in the action. The mtgor. did not put in appearance & the suit ended in a compromise between the landlord & the mtgee. The mtgor. had an opportunity to preserve his equity of redemption, but he did not avail himself of it, although he was joined as party deft, in the action. It was on these facts that their Lordships held that, unless the rent sale could be set aside, the mtgor. or his assignee could not he heard to assert his right to redeem. I may observe that the law laid down in Gauri Shankers case, AIR 1936 Pat. 434 : 164 I. C. 213 ) if read apart from the facts, would offend the rule of equity that a person cannot take advantage of his own wrong. In Fekua Mahto and Others Vs. Babu Lal Sahu and Others, , Harries C. J. folld. the Bench decision in Gauri Shankers case, A. I. R. 1936 Pat. 434 : (164 I. C. 213), & it was held that where property subject to a mtge. is sold in execution of a rent decree & at some later period purchased by the mtgee, whose failure to pay rent has resulted in the re tit decree, such purchase by the mtgee. does not, in the absence of fraud, revive the equity of redemption which is extinguished by the sale. An examination of the facts in Fekua Mahto and Others Vs. Babu Lal Sahu and Others, clearly shows that there was no duty cast upon the mtgees. to pay the rent in respect of the mortgaged property. Therefore, Fekua Mahto and Others Vs. Babu Lal Sahu and Others, was not at all a case where the principle whether a wrong- doer can take advantage of his own wrong was involved. The facts in Fekua Mahto and Others Vs. Babu Lal Sahu and Others, were these. In 1886, the ancestors of pltfs. 1 to 3 & defts. S to 10 mortgaged their tenure to one Musammats in village H. In 1892 the mtgors. sold their right to B, who paid up the money due on the mtge. & thus redeemed it. Later on B mortgaged the property to N. In 1898 the ancestors of pltfs. 1 to 3 & defts. 8 to 10 again mortgaged the same village to defts. 1 to 7, & by the terms of the mtge. the latter, who were given possession, were bound to pay rent in respect of the tenure mortgaged. After this mtge. litigation ensued between N (mtgee. of B) & defts. 1 to 7, & eventually N obtained a decree for possession, but he never executed the decree & never obtained possession of the tenure. Defts. 1 to 7 fell in arrears with their rent. In July, 1904, 8 annas share in this village was sold to R. S. in execution of a rent decree, which the owners of the village obtained, & later on, in the same year, the remaining 8 annas share in the village was sold to A. T. in execution of another rent decree obtained by other co-owners. Therefore, by the end of 1904, the whole of this village had been sold in execution of rent decrees to R. S. & A. T. These two persons entered into possession of the property & remained in such possession till 1919. On 22-5-1919, defts. 1 to 3 purchased 8 annas interest held by R. S. & on 10-8-1919, they purchased the other 8 annas interest held by A. T. By the end of 1919, therefore, defts. 1 to 3, who were the mtgees. under the mtge. executed in the year 1898, had become owners of the 16 annas in this village. In February, 1933, the original mtgors., namely, pltfs. 1 to 3 & defts. 8 to 10, sold their alleged mtgors. right to pltfs. 3& 4. The pltfs. contended that they still held the equity of redemption in the mtge. & brought the suit claiming redemption. These facts clearly show that defts. 1 to 3, who were the mtgees. of the ancestors of pltfs. 1 to 3 & defts. 8 to 10, were held by a decree of the Ct. to have no right in the mortgaged property in the litigation between defts. l to 7 & N. Therefore, they wore under no obligaion to pay the rent in respect of the tenure which ultimately came into their possession, because in the litigation that ensued between them & N, the latter succeeded in defeating the claim of defts. 1 to 7, & so, in the eye of law, no duty was cast on them to pay the rent of the tenure in spite of their undertaking by the terms of the bond to pay the rent of the tenure mortgaged. The principle enunciated in Fekua Mahto and Others Vs. Babu Lal Sahu and Others, , therefore, must be read in the light of these facts. In my opinion, Harris 0. J. cannot be said to have laid down a rule contrary to what he has said in the later case of Ghandi Mander v. Sitabi Bhagat, 21 P. L. T. 699, where he has clearly held that a mtgee. who is bound by the terms of the mtge. to pay rent in respect of the land mortgaged to him cannot claim benefit arising from his own default.

11. The matter, however, does not rest only with the breach of a duty on the part of the defts. The evidence discloses not only a case of misconduct, bat also warrants an inerence of collusion between them & the landlords amlas. (After discussion of the evidence the judgment proceeds:) Therefore, on a careful consideration of all the facts & circumstances, I am clearly of the opinion that the defts. took the settlement in fulfilment of their design &, as such the pltfs. are entitled to treat the Ct. sale as a private sale & claim redemption, because the mtge. must be treated in the eye of law as still subsisting. If any authority be needed for this proposition, I would refer to Sidhee Nazir Ali v. Ojoodhyaram, 10 M.I.A. 540 : (5 w. R. 83 P. c), Deonandan v. Janki Singh, 44 I. A. 30 : (A.I.R. 1916 P. C. 227), Gauri Shanker v. Sheotahal, A. I.R. 1936 Pat. 434 : (164 I. C. 213); Fekua Mahto v. Lal Sahu, 18 Pat. 133 : (A. I, R. 1939 Fat. 382) & an unreported decision of this Ct. in Second Appeal No. 907 of 1948, Ramdas Singh v. Manki Singh, decided on 4-5-1949.

12. Lastly, it was contended by Mr. Lal Narain Sinha that, even if fraud be held to have been proved, the pltfs. not having claimed reconveyance of the property; the suit must fail, & reliance has been placed by him on the decision of the Judicial Committee in Deonandan v. Janki Singh, 44 I. A, 30 : (A I. R. 1916 P. C. 227). In my opinion, this argument is not well founded. The pltfs, suit is, in effect, to quote the language of the Judicial Committee, in Stdhee Nazir Alt v. Ojcodhyaram Khan, 10 M. I. A. 540 at p. 553 : (5 w. R 83 P. c), "to confess & avoid that sale, by imposing a trust on the estate which passed under it." The decree or the sale under it is not, therefore, required in law to be set aside. The pltf.s case is that the sale enures to their benefit, & the defts. at whose instance the sale took place, must be relegated to the position in which they were before the sale. The case clearly falls within the following dictum of Lort-Williams in Nawab Nazir Ally v. Ojoodhyaram Khan, 10 M.I.A. 540: (5 W. R. 83 P. C.) :

As to this, it is sufficient to observe that on the allegations in the plaint that bar cannot be set up; for the title & possession of the clefts, against whom the redemption is ptajed by this suit, is expressly alleged to be founded on fraud. This period of limitation, therefore, may be laid out of the case; & we come then to what has appeared to their Lordships to be the real question in the case (the question to which we have above refd.), whether the pltf. can in point of law, insist, notwithstanding the auction sale for arrears of revenue, that as against him, that sale ought to be viewed as a private sale. The title to redeem in this suit as against the parties subsequent to Abbott is rested on that ground, & the case which the pltf, alleges by this plaint, & by the documentary proof appended to it, is one of fraud between Abbott & MeArthur, to deprive him of his title to redeem the Zemindary, by means of a secret purchase of it between them for three lacs of rupees, including a fraudulent device of a sale by auction for arrears or revenue, such arrears to be designedly Incurred.

13. The pltfs. are, therefore, entitled to treat the rent sale as against the defts. as a private sale & claim redemption even without a prayer for the getting aside of the sale.

14. The trial Ct has decreed the suit for redemption on payment of RS 800 only; but as the defts. have used their position as mtgees. in securing an advantage by which the rent of the holding had been reduced on payment of salami, they are, in my opinion, entitled to the money which they paid to the landlords by way of salami to secure that advantage. Therofore, the pltfs. must pay Rs. 1,325, paid as salami, within four months, & they would be entitled to redeem the mtge. on payment of this amount. With this modification, the judgment of the trial Ct. is affd. & the appeal dismissed; but, under the circumstances of the case, the pltfs. will not be entitled to costs in this Court.

15. Reuben J.

I agree.

16. On the finding that the mtge. deed was duly executed & regd. & that the registration receipt was made over to the mtgees. with the intention of giving effect to the mtge. there can be no question of want of delivery.