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PATNA HIGH COURT
Lakshmikanta Jha and Reuben JJ.
Thakur Prasad Singh
Versus
Raghubar Prasad Singh
Appeal from Original Decree No. 436 of 1946 ;
Decided On : APRIL 21, 1952
REDEMPTION OF MORTGAGE - USUFRUCTUARY MORTGAGE - INTEREST OF MORTGAGOR - SALE OF MORTGAGED PROPERTY IN EXECUTION OF DECREE - EFFECT - RIGHT TO REDEEM - TRANSFER OF PROPERTY ACT, SECS. 60, 62.
Fact of the Case:
The plaintiffs filed a suit for redemption of a mortgage created by a sadhawa patawa bond executed by their father. The mortgage was usufructuary in nature and the mortgagors were allowed to retain possession of 180 bighas 15 kathas of bakasht land. The mortgagee filed a suit against the mortgagors for arrear rent due for this land and obtained a decree in execution of which he put to sale and purchased the mortgaged property.
Finding of the Court:
The court held that the mortgage was not a pure usufructuary mortgage as the mortgagors retained possession of the bakasht land. It further held that the mortgagors had an interest in the mortgaged property which could be transferred and that the execution sales in this case passed that interest to the decree-holder auction-purchaser. The court also held that the plaintiffs were not entitled to redeem the mortgage as the entire mortgaged property had vested in the mortgagee when he purchased the remaining proprietary interest of the mortgagors.
Issues: 1. Whether the mortgage was a pure usufructuary mortgage? 2. Whether the mortgagors had an interest in the mortgaged property which could be transferred? 3. Whether the execution sales in this case passed that interest to the decree-holder auction-purchaser? 4. Whether the plaintiffs were entitled to redeem the mortgage?
Ratio Decidendi: 1. A usufructuary mortgage is one in which the mortgagee is entitled to possession of the mortgaged property and to appropriate the rents and profits thereof in lieu of interest on the mortgage debt. 2. In a usufructuary mortgage, the mortgagor retains an interest in the mortgaged property which can be transferred. 3. An execution sale of the mortgaged property passes the mortgagor's interest in the property to the decree-holder auction-purchaser. 4. A mortgagor is entitled to redeem the mortgage when the mortgage-debt is satisfied.
Final Decision: The appeal was dismissed and the plaintiffs were directed to bear their own costs of the appeal.
Reuben, J.
1. This is an appeal by the plaintiffs from a decision of the Additional Subordinate Judge at Monghyr dismissing a suit for redemption of a mortgage.
2. The plaintiffs-appellants are father and son and members of a joint Mitakshara family. The mortgage sought to be redeemed was created by a sadhawa patawa bond executed by Bhagwat Prasad Singh deceased, lather of the plaintiff No. 1 Thakur Prasad Singh, both as karta of the joint Mitakshara family consisting of himself and his son, and as guardian of his son. By this deed, the mortgagors hypothecated four items of proprietary interest (1) 3 annas and odd share in mauza Azizpur Piparia, touzi No. 838, (2) 16 annas khas patti in Azizpur Piparia, tauzi No. 840, (3) 8 annas out of 16 annas in respect of 4 annas patti in mauza Jagdishpur Saiyadpur, touzi No. 987, and (4) 8 annas out of 16 annas in respect of 4 annas patti in Jagdishpur, touzi No. 8994, to secure an amount of Rs. 17,000.00 for the period 1st Asin 1336 to 30th Bhado 1351 Fasli. The property was to remain in the possession of the mortgagee Dalip Narain Singh, defendant No. 1 since deceased, who would be responsible for the payment of Government revenue and cess. The income of the property, after making a certain allowance for the cost of collection, was to be applied first to the payment of the interest payable under the sadhawa patawa deed and the balance, if any, towards the satisfaction of the principal amount of the said mortgage-debt. There was to be a yearly rendering of accounts. If within the term of the mortgage the debt was not satisfied the sadhawa patawa was to continue till the date of payment of the entire mortgage dues.
2a. There was a special provision regarding 180 bighas 15 kathas of bakasht land, 107 bighas of which lay within tauzi No. 840 and the balance 73 bighas 15 kathas within touzi No. 838. I reproduce the provision: "We the executants have khud kasht land in the properties let out in sadhawa patawa. Out of the said lands jamabandi (rent) has been fixed with regard to some land which has been recorded as nakdi kaimi land in the name of minor son, Thakur Prasad Singh in the jamabandi list which has been signed by me and made over to Rai Bahadur the said creditor. B. Thakur Prasad shall keep, in possession and occupation the said land till the payment of the sadhawa patawa money, the said Rai Bahadur shall continue to receive the rent thereof according to the list submitted by us, the executants year after year."
There was no accounting between the parties. Also, no payment was made by the mortgagors in respect of the 180 bighas 15 kathas. It appears that in 1931 the mortgagee filed a suit against the mortgagors in respect of arrear rent due for this land and obtained a decree in execution of which he put to sale and purchased the mortgaged property.
3. The plaintiffs filed the suit on the basis that their interest was unaffected by the execution sales and that the mortgage dues were fully satisfied by the usufruct of the mortgaged property. They pleaded:
"The plaintiffs have come to know that defendant No. 1 instituted a rent suit in respect of the said land against the family of the plaintiffs and obtained a decree fraudulently and surreptitiously and thereafter executing the said decree by taking surreptitious steps purchased all the jot lands and the properties let out in sadhawa patawa for a meagre amount of Rs. 300. The plaintiffs beg to submit that the said decree was a money decree. The plaintiffs have come to know that defendant No. 1 had never obtained permission from the Court for purchasing at the auction-sale. As the said decree was in respect of the subject-matter of the sadhawa patawa deed, hence the purchase by defendant No. 1 at auction sale is by all means illegal and ineffective. The plaintiffs beg to submit that the defendants are up till now in possession and occupation of the properties let out in sadhawa patawa as sadhawa patawadar. The plaintiffs have b
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