Kashi Lal and Another vs Nurul Huq and Others

Das, J.—This appeal arises out of a suit instituted by the appellants to recover the mortgage money due to them in respect of a usufructuary mortgage executed by defendant 1, Shaikh Nurul Huq in favour of Bechan Kuer on 19th February 1903, or in the alternative for recovery of possession of the mortgaged properties. The usufructuary mortgage comprised a six annas two pies share in touzi 669, a one anna six pies odd share in touzi 227, one anna odd share in touzi 178 and 4 bighas of kharij jama lands. There is no dispute that Bechan Kuer, who was the original plaintiff in the action and who is represented by the present plaintiffs since her death, obtained possession of all the mortgaged properties.

It appears, however, that the separate account of defendant 1 consisting of two annas eight pies share in touzi 227 was sold for arrears of Government rent on 9th January 1912, and was purchased by Khairud-din. He sold the share to Basashat Hus-sain add Basashat Hussain in his turn conveyed the properties to different persons represented in the appeal before us by respondents 4, 6 and 7. On 7th June 1920, the entire touzi 669 was sold for arrears of Government revenue and was purchased by one Wahiduddin who conveyed it to Mt. Alimunnissa, who is a cosharer in that touzi. So far as the other two mortgaged properties are concerned, it is the case of the defendants that the plaintiffs are still in possession of those properties The plaintiffs say, however, that they Save been dispossessed by defendant 1 but defendant 1 claims no interest in these properties.

Now, there is no doubt whatever that the sales in question took place on account of the default of the mortgagees in possession. That being the position, the plaintiffs have not established a case u/s 68, T.P. Act, and in my opinion the learned Subordinate Judge was right in refusing to give the plaintiffs a decree for the mortgage money.

But the question still arises whether the plaintiffs are not entitled to a decree for possession in respect of those properties. The solution of the question must depend on whether the purchasers at the revenue sale acquired the estates subject to the encumbrances existing at the time of the sale. So far as touzi 227 is concerned, there appears to me to be no difficulty whatever. All that was sold was the separate account of defendant 1 in that touzi, and in my opinion the case attracts to itself the operation of Section 54, of Act 11 of 1859. That section provides:

When a share or shares of an estate may be sold under the provisions of Section 13 or 14, the purchaser shall acquire the share or shares subject to all encumbranoes, and shall not acquire any rights which were not possessed by the previous owner or owners.

Now, this being the position, the purchaser merely acquired the equity of redemption which was in defendant 1. It was contended on behalf of the learned advocates appearing for respondents 4, 6 and 7 that the shares purchased by them are outside the one anna six pies odd mortgaged to the plaintiffs. There is no dispute that only one anna six pieg odd out of two annas eight pies belonging to defendant 1 was mortgaged to the plaintiffs and that the entire two annas eight pies belonging to defendant 1 was sold for arrears of Government revenue on 9th January 1912. The learned Subordinate Judge in his judgment says:

There is nothing to show that the shares purchased by respondents 4, 6 and. 7 are comprised within the one anna six pies share mortgaged by defendant 1 to the plaintiffs.

In my opinion this question must be re-investigated by the learned Subordinate Judge. The plaintiffs are entitled to recover possession of one anna six pies share mortgaged to them. If this share is in the possession of defendant 1, then the plaintiffs will be entitled to recover it from defendant 1. If on the other hand, the learned Subordinate Judge comes to the conclusion that the share is in the possession of respondents 4, 6 and 7, then the plaintiffs will be entitled to recover it from those respondents.

It was contended on behalf of respondents 4, 6 and 7 that the plaintiffs'' suit is barred by limitation. The learned Subordinate Judge thought that the case ''is governed by the six years'' rule of limitation. But this conclusion is, in my opinion, erroneous. The suit is for recovery of possession and in my judgment the 12 years'' rule must apply to a case of this nature. Apart from this I am satisfied that the plaintiffs were actually in possession, at any rate, up to 1917. The plaintiffs have tendered in evidence in this Court a rent decree obtained by them in 1917 in respect of rent due to them from 1914 to 1917. I am satisfied that they were in possession up to 1917 and that the suit is within time.

Now, I come to the plaintiffs'' casein regard to touzi No. 669. The entire touzi was sold on 7th June 1920, and was purchased by Wahiduddin, who conveyed it it to Mt. Alimunnissa, respondent 13. There is no dispute that Mt. Alimunnissa has a share in touzi No. 669 and this being the position she is in the position of a person who has by repurchase

recovered possession of the said estate after it had been sold for arrears undar this Act.

Section 53, Act 11 of 1859 lays down that a proprietor or copartner purchasing or repurchasing the. estate after it had been sold for arrears under Act 11 of 1859

shall by such purchase acquire the estate subject to all its enoumbranoer existing at the time of sale.

It was laid down in Mahomed Gazee v. Pearee Mohun 16 W.R. 136, that any co-proprietor purchasing on estate sold for a arrears of Government revenue repurchases it subject to all its encumbrances existing at the time of sale, even if the purchaser is a non-defaulting proprietor and the encumbrances were made by defaulting proprietors. In that case it was contended that the share was first purchased by Mr. Delanny, who was not one of the proprietors who subsequently conveyed it to one of the proprietors. The plaintiffs case was that Mr. Delanny was in fact a benamidar of the proprietor in question. In dealing with the question Jackson, J. said as follows:

There was in the first place an allegation on the part of the defendant that the purchase which was in the name of Mr. Dalanny was not made benami for him, and there has bean an argument in this Court that the grounds upon which both the Courts have come to the conclusion that such purchase had been benami are not sufficient in law. But it is unnecessary to look to these grounds, because, u/s 53, Act 11 of 1859, the very fact that Mahomed Gazee was formerly a co-proprietor and has subsequently repurchased this property is sufficient to bring him within the purview of that law under which it is declared that such purchase is made subject to all the in cumbrances existing at the time of sale.

The learned advocate appearing on behalf of respondent 13 contended before us that the view taken in the case which I have just cited is not an equitable one; but it seems to me that we are dealing with an exceptional piece of legislation and what is termed an equitable construction of statute is not applicable to a statute of this nature. If the case falls within Section 53 or Section 54 of the Act, then those sections must have operation however inequitable it may be on our part to give effect to those sections. On the other hand, if the case does not fall within either of those sections, then the case will be governed by Section 37, however inequitable it may be. The question is a simple one, namely, whether the case falls within the rule as laid down in Section 37 or within the provisos of Section 53 or Section 54 of the Act. In my judgment the plaintiffs are entitled to a decree for possession of the disputed properties.

I would, therefore, allow the appeal, set aside the judgment and the decree passed by the Court below and give the plaintiffs a decree for possession in respect of the disputed properties. There will be no order for costs. On the question whether the shares purchased by respondents 4, 6 and 7 are comprised, within the 1 anna 6 pies odd in touzi No. 227 mortgaged to the plaintiffs, both parties will be entitled to adduce evidence in the Court below.

Adami, J.

I agree.