Section 90 of the Trusts Act does not apply where the mortgagee is not instrumental in bringing about the auction sale of the mortgaged property.

1. The defendants in the action are the appellants here having directed this appeal against a judgement of reversal.

2. The respondents instituted the suit for redemption of a usufructuary mortgage dated 9-11-33 for a consideration of Rs. 180 only with regard to 2.25 acres out of plot No. 1728 appertaining to khata No. 788. Admittedly the plaintiffs respondents predecessors in interest had a holding comprising khata No. 788 consisting of plot Nos. 1727, 1728 and 2796, the entire measuring 3.46 acres. Out of this area, as stated earlier, 2.25 acres out of plot No. 1728 were mortgaged by the plaintiffs predecessors in interest in favour of the defendant appellants family. The plaintiffs case simply stated is that they approached the appellants to redeem the mortgage by accepting the mortgage dues which the latter declined. As a result, the plaintiffs tendered the money in court in accordance with the provisions of S.83 of the Transfer of Property Act. The appellants not having redeemed the mortgage, the suit has been instituted.

3. The defence of the appellants was three-fold -

(i) That shortly after the transaction of mortgage it was redeemed on payment. This defence has not been accepted by final court of fact.

(ii) That the mortgagors defaulted in the payment of rent as a result of which a rent suit was instituted and a decree thereon obtained by the landlords of the tauzi. After the rent decree the landlords purchased the holding in execution of the rent decree and came in actual physical possession of the same. Subsequently they settled the land in favour of the appellants and the appellants came in possession as settlee. The equity of redemption was lost and the mortgage extinguished.

(iii) That the appellants have been coming in possession openly and adversely for more than the statutory period to the knowledge of the respondents, thereby acquiring a right of prescription.

4. The trial court had dismissed the suit on the ground that the mortgage has been wiped out by the auction purchase at the rent sale by the landlords. The appellants, it was held, came in possession by virtue of the settlement in their favour and there was no question of the application of the principles of S.90 of the Trusts Act, 1882 (hereinafter called the Act). The lower appellate court has rather confused the issues. It has held that the rent decree and auction sale seemed to be surreptitious and the landlords possession subsequent to the auction purchase was doubtful. And, since a part of the rent for the holding was to be paid by the mortgagee, the principles of Sec. 90 of the Act will be attracted, and, therefore, the respondents suit has been decreed.

5. The true appreciation of the position in law with regard to the application of the principles of trust would not have led to the confusion in the appellate court. The position in law is well settled. The contribution to the bringing about of the sale must be a direct result of the mortgagees possession as such who purchases the property himself at the sale in execution of the rent decree gaining an advantage by availing himself of his fiduciary position [(refer to Smt. Basanti Devi V/s. Chamru Sao, AIR 1964 SC 1707]. The transaction of sale and purchase by the landlord and the subsequent settlements by him should form part of the same transaction or part of the same design, artifice or device brought about by the mortgagee in order to attract the principles of S.90 of the Act. If the rent sale is a genuine sale, it extinguishes the mortgage and the relationship of mortgagor and mortgagee comes to an end. In such circumstances, the mortgagor or his successors in interest are not entitled to the advantage of S.90 of the Act. The question as to whether that provision is attracted or not must depend on the facts of each case. The purchase of the holding by the mortgagee himself is an important factor in such cases in order to press in aid the principle of Sec. 90. Even in the absence of su