Patna High Court
Mt. Bibi Ganshul Fatma And Ors. vs Badri Singh And Anr. on 29 November, 1951
Equivalent citations: AIR1952PAT155, AIR 1952 PATNA 155
JUDGMENT Narayan, J.
1. This is a plaintiffs' appeal arising out of a suit in which the main prayer was that a preliminary decree for rendition of accounts be passed in favour of the plaintiffs. The facts are these: Plaintiff No. 1 had a holding with an area of 5 bighas 8 kathas 16 dhurs of which the annual rental was Rs. 10-10-6. Out of this holding he gave 2 bighas 1 katha 17 dhurs in usufructuary mortgage to the defendants for a consideration of Rs. 335 by a document which was executed on the 2nd September 1927. Thereafter, the landlord obtained two rent decrees with regard to this holding. one of which was for Rs, 53-9-6 and the other for Rs. 75. The defendants as mortgagees deposited the amounts payable under the decrees and, in accordance with the provisions of S. 171 of the Bihar Tenancy Act, obtained possession of the remaining portion of the holding. The possession of the remaining portion of the holding was delivered to the defendants on the 18-1-1943 and on the 1st of September 1943 the plaintiff No. 1 sold the entire holding to the plaintiffs Nos, 2 & 3.
2. The plaintiffs' allegation was that the entire dues of the defendants had been satisfied from the income of the property and that after a proper accounting the plaintiffs would now be entitled to recover Rs. 1387-4-0 from the defendants. The main relief sought, as already pointed out, was a preliminary decree for rendition of accounts and a declaration to the effect that the usufructuary mortgage as well as the statutory mortgage created by the deposit under S. 171 of the Bihar Tenancy Act had been satisfied. It was also prayed that possession of the property be delivered to the plaintiffs Nos. 2 and 3.
3. The claim was resisted by the defendants, and their contention was that the plaintiffs were not entitled to the possession of the property until they deposited the entire amount which they were liable to pay to the defendants. The defendants further alleged that on a proper accounting it is they who would be entitled to get a sum of Rs. 1602-2-9 from the plaintiffs.
4. The Court of first instance dismissed the suit and the Court of appeal below confirmed the decision of the learned Additional Subordinate Judge.
5. The lower appellate Court was of opinion that until the plaintiffs deposited the entire amount of the decree with interest thereon they were not entitled to possession of the holding, and the learned Additional District Judge relied on a decision of this Court in 'RAM LAL v. THAKUR DAS', AIR (25) 1936 Pat 94. In our opinion a decree lor rendition of accounts should have been passed in this case in as much as the settled view appears to be that, whenever there is a deposit under Section 171 of the Bihar Tenancy Act and the mortgagee making the deposit takes possession on the property, a statutory mortgage is created in his favour. in fact, therefore, there were two mortgages in this case to be satisfied, one being the usufructuary mortgage and the other being the statutory mort-gage which had been created on account of thej operation of Section 171 of the Bihar Tenancy Act. As pointed out by a Division Bench of this Court in 'MUNGE LAL v. SAGARMAL', 15 Pat 481, though Section 171 of the Act provides that the payment of money to save a holding or tenure from sale will create a mortgage by the operation. of the law in favour of the man who pays the money, the rights and liabilities of the mortgagor and the mortgagee will have to be governed by the law which applies to mortgages in general. In 'RAJES-WAR PRASAD V. RAJANI NATH', 35 Cal W N 678, it was pointed out that when a person makes a payment under Section 170 of the Bengal Tenancy Act, he is, under Section 171(1) (c) entitled as a mortgagee to possession of the tenure or holding in respect of which the payment is made and, under Section 171(2) he has also a further remedy to sue for the enforcement of the statutory mortgage after giving up possession of the tenure or holding concerned, and that, if such a person avails himself of the second remedy and brings a suit for the enforcement of his mortgage, he sues in a proper form and a 'preliminary decree for accounts' in such a suit will be a correct decree. There can therefore be no doubt that, if by the operation of the law a statutory mortgage is created, then there must be an accounting between the mortgagor and the mortgagee. A mortgagee in possession is liable to account for the rents and profits of the mortgaged property, and a person making a deposit under Section 171 of the Bihar Tenancy Act will consequently be liable for the rents and profits of the property which have come into his possession under the statutory mortgage created by the operation of Section 171 of the Bihar Tenancy Act. The facts of 'RAM LAL JHA's Case appear to me to be distinguishable. That was a civil revision matter and it arose out of a petition by the mortgagee who had deposited the amount which had been decreed against the recorded tenant. Possession had been delivered to him in accordance with the provisions of Section 171 of the Bihar Tenancy Act and, after possession had been delivered to him, the judgment-debtor filed a petition offering to deposit the amount which had been paid by the petitioner less the amount which he (the judgment-debtor) claimed should have been paid as his share of the rent and less the price of crops which he alleged the petitioner had enjoyed while he was in possession. The Court below, on this application, directed the judgment-debtor to be put back into possession on payment of the decretal amount less the amount claimed as the petitioner's share of the rent and less the price of the crops which had been assessed by the Court at Rs. 3 per bigha. His Lordship Agarwala, J. (as he then was) found that the Court had arrived at this figure without any evidence whatsoever and that it was wholly wrong for the Court to fix arbitrarily the rate of Rs. 3 per bigha as the price of the crop. There is no doubt an observation to the effect that:
"The section quite explicitly states that it is the amount deposited to prevent the sale which shall be deemed to be a debt from the decree-holder to the person making the deposit and that it is only on repayment of this debt that the judgment-debtor shall be entitled to regain possession,"
and his Lordship set aside the order of the Court below because the amount had not been deposited in that case. The question as to whether on account of the creation of statutory mortgage there was a liability for accounts was not before his Lordship in the strict sense, and undoubtedly his Lordship set aside the decision of the Court below also because he was of the opinion that the rate of Us. 3 per bigha had been arbitrarily fixed. Section 171 (1) (c) says that "he shall be entitled to possession of the tenure or holding as mortgagee of the tenant, and to retain possession of it as such until the debt, with the interest due thereon, has been discharged."
The term used is "discharged" and the debt can be discharged either by the deposit of the mortgage-money or by showing through accounting that the debt has been satisfied by the enjoyment of the usufruct of the property. With the greatest respect, I should say that if his Lordship intended to ay down the principle that in every case there should be a deposit of the mortgage-money, that is not the correct view of the law.
6. It may be noted that the respondents had filed a petition in this case stating that thumb impression of appellant no. 1 on the 'vakalatnama' was forged, and their prayer was that an inquiry be held with regard to the same. The appellant No. 1 is now dead and this petition is not pressed.
7. In the result, therefore, this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and it is directed that a preliminary decree for redemption and accounts be passed in favour of the plaintiffs in this case. The present appellants will recover their costs of this appeal and the appeal to the lower appellate Court, and the costs of the trial Court will follow the final result.
Reuben, J.
8. I agree.