Subraya Kuppa Joshi v. Timmanna Subraya Bhatta

Broomfield, J.:— This appeal arises in a suit brought by the appellants as plaintiffs under Section 15-D of the Dekkhan Agriculturists' Relief Act, for an account of two mortgages. The suit has been dismissed by the lower Courts on the ground that the mortgages are no longer subsisting. The mortgages refer to seven lots of land. Lots 1, 2 and 3 were mortgaged in 1900 and lots 4 to 7 were mortgaged in 1902. The mortgagees under these two mortgages transferred their rights to Venkamma, the mother of defendant 2, in 1921 and 1923 respectively. Some years before this, viz. in 1905, the plaintiffs' father purchased lots 3 and 4 at an execution sale. That is to say he purchased the equity of redemption in these two lots. Shortly before this suit was brought, viz. on 27th September 1929, the father of defendant 1, who was the only survivor in the family of the mortgagors, redeemed both mortgages by a payment of Eg. 2900 to defendant 2. Then the plaintiffs brought their suit for an account under Section 15-D of the Dekkhan Agriculturists' Relief Act.

2. The finding that such a suit does not lie is in accordance with the decision of Baker J. in 53 Bom 353,1 although this authority has not been cited in the judgments of the lower Courts. Baker J. relied on the provisions of the Transfer of Property Act before it was amended by Act 20 of 1929 and particularly on S. 95 of the Act. He held that the owner of a portion of the equity of redemption who redeems the whole mortgage does not thereby become subrogated to the position of the mortgagee but is in the position of a charge-holder and that a suit for accounts against him will not lie. He relied on the decision of Sir Lawrence Jenkins in 26 Bom 500.2 Mr. Murdeshwar who appears for the plaintiffs-appellants' before us relies on Section 92 of the Transfer of Property Act, which is a new Section introduced by the amending Act of 1929 which came into force on 1st April 1930. This Section provides as follows in the first clause thereof:

Any of the persons referred to in S. 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.

3. The transactions with which we are concerned are all prior to the coming in force of the amending Act. But Mr. Murdeshwar argues that in view of the language of S. 63 of the amending Act the new S. 92 should be regarded as retrospective. Although we consider that there is considerable difficulty in construing S. 63, we are on the whole in agreement with the view taken by the Allahabad High Court, 54 All 8973 and AIR 1937 All 588,4 both Full Bench decisions, and the Calcutta High Court, 42 CWN 38,5 that S. 92 is to be regarded as retrospective, as against the view taken by the High Courts of Madras, Patna and Rangoon: 56 Mad 169,6 59 Mad 359,7 13 Pat 1118 and 10 Rang 465.9 We do not propose to discuss the point in detail because in our opinion S. 92, even if it is retrospective, does not help the appellants here. As I have mentioned, the father of defendant 1 at the time when he redeemed the mortgage was the sole surviving member of the family of the mortgagors. S. 92 does not apply in the case of a mortgagor. It does apply in the case of a co-mortgagor, but it is a little doubtful, I think, whether defendant 1's father can be regarded as a co-mortgagor within the meaning of S. 92 because of the fact that in 1905 the father of the plaintiffs had acquired the equity of redemption in respect of two of the lots.

4. However that may be, S. 92 deals with, the rights of a co-mortgagor who redeems property subject to the mortgage. That is to say if the Section applies at all, it deals with the rights of defendant 1's father and defendant 1. The argument is that the result of defendant 1's father paying the mortgage debt was that in respect of the two plots owned by the plaintiffs, he was in the position of a mortgagee and that therefore by implication the plaintiffs as owners of a portion of the equity of redemption are in the position of mortgagors and entitled to redeem. That may be a reasonable inference so far as rights determined by the Transfer of Property Act are concerned. But it by no means follows that the plaintiffs are entitled to bring the kind of suit which they have brought under Section 15-D of the Dekkhon Agriculturists' Relief Act. They are seeking a special remedy under a special Act and the requirements of that Act must be clearly satisfied. Under the ordinary law of mortgages a suit for accounts without redemption cannot be brought. S. 16-D provides that any agriculturist whose property is mortgaged may sue for an account of the amount of principal and interest remaining unpaid on the mortgage and for a decree declaring that amount. Now there is no doubt that the plaintiffs are entitled to bring a suit for possession of lots 3 and 4 purchased by them and in that suit they may be entitled to have an account taken in order to determine the amount which they are to pay to defendant 1. But by no stretch of language can such an account be said to be an ac count of the amount remaining unpaid on the mortgage, for the whole amount due on the mortgage has, according to the findings of the lower Courts which ore binding on us, already been paid by defendant 1 to the mortgagee. In that connexion I may refer to 26 Bom LR 341,10 where it was held that a suit under S. 15-D will only lie on the presumption that there was a mortgage in existence by an agriculturist and an issue whether or not a mortgage was in existence could not be entertained. A fortiori, it would seem such a suit cannot be entertained when the amount of the mortgage debt has in fact been paid up.

5. An alternative argument urged by the learned advocate for the appellants was that even if defendant 1 is to be regarded as a mere charge, holder and not a mortgagee, then by reason of Section 100 of the Transfer of Property Act, and O. 34, R. 15 of the CPC, the plaintiffs would still he entitled to sue for an ac count. Section 100 of the Transfer of Property Act, provides that all the provisions in the Act which apply to a simple mortgage shall, so far as may be, apply to a charge, and O. 34, R. 15, says that all the provisions in this order which apply to a simple mortgage shall, so far as may be, apply to a charge. So far as the provisions of the Transfer of Property Act are concerned therefore and so far as procedure under the Code of Civil Procedure is concerned, there may be little difference between a mortgage and a charge and in certain circumstances the owner of property may be entitled to bring a suit in, the nature of a redemption suit against the person who holds a charge thereon.

6. But the answer to this argument is the same as the answer to the first argument put for ward. Whatever the rights of the plaintiffs may be by reason of these provisions, it cannot be seriously contended that they give them a right to bring this special kind of suit under the provisions of Section 15-D of the Dekkhan Agriculturists' Relief Act. Such a suit appears in fact to be entirely inappropriate on the facts found in this case, viz. when the mortgages have been redeemed by payment of the full amount of the mortgage debt.

7. We think therefore the appeal fails and must be dismissed with costs.

R.M/R.K

8. Appeal dismissed.