1. This is a plaintiffs' appeal in a suit brought for redemption of a mortgage executed by Dhondha Rai and others on 19th September 1878 in favour of the predecessor-in-interest of the defendants in this suit. The plaintiffs claimed to represent the mortgagors and their suit has been dismissed on appeal by the Subordinate Judge, first, on the ground that the plaintiffs had no right or title to redeem the mortgage as the legal representatives of the mortgagors; and, secondly, because the mortgagees had acquired a proprietary title by adverse possession for more than 12 years.
2. The plaintiffs' ancestors were the mortgagees of Dhondha and others in virtue of two deeds executed on 23rd August 1869 and 16th December 1876 respectively. A notice of foreclosure was served by the mortgagees fin the mortgagors in accordance with Regn. 17 of 1806 on 23ra August 1877 and the order of foreclosure was passed on 2nd October 1877. Under Regn. 17 of 1806 a year's grace was allowed to the mortgagors for satisfaction of the mortgage amount, and that year of grace expired on 23rd August 1878. The property to be foreclosed was contained in twelve villages and on 12th July 1878 before the expiry of the year of grace a compromise was entered into between the mortgagees and the mortgagors by which it was agreed that if the mortgagors relinquished their claim to exproprietary rights the remaining 81/2 villages would be released from foreclosure. This compromise however did not come into effect as the mortgagors did not for go their claim to exproprietary rights and in 1880 a suit was brought by the mortgagees for possession in accordance with the order of foreclosure. After the expiry of the year of grace on 19th September 1878, Dhondha and others mortgaged 17 bighas sir land situated in the 81/2 villages which would have been released from foreclosure if the compromise had taken effect to the predecessors of the present defendants. When the present suit was brought for redemption of this mortgage by the present plaintiffs they were met with the defence that as they had become absolute owners of the property by foreclosure on the expiry of the year of grace on 23rd August 1878 they could not sue for redemption of a mortgage executed by the former proprietors of the land on 19th September 1878 because the mortgagors had no right subsisting at the time of the mortgage and therefore could not be represented by the present plaintiffs who were the actual proprietors at that time. In the Courts below the plaintiffs pleaded that they did not become absolute proprietors on the expiry of the year of grace because their title was kept in abeyance by the compromise and they should not be held to have acquired the absolute rights until the conclusion of the suit brought by them for possession in the year 1880. This suit was contested and went on appeal to the High Court whose decision is reported in Dhonda Rai v. Meghu Rai [1882] 4 All. 332. This argument was supported by a reference to the decision of the Judicial Committee in Forbes v. Ameroonissa Begum [1863-66] 10 A.I.R. 340. But we do not consider that that judgment is an authority for the view put forward by the plaintiffs-appellant. Indeed, this very argument was addressed to a Full Bench of this Court in the case of Ali Abbas v. Kalka Prasad [1892] 14 All. 405 and rejected by them. The Full Bench held:
that on the expiration of the year of grace, provided that anything remains to be paid under the mortgage and the proceedings under the Regulation were regular, all of which facts appear to have been found here, the title of the conditional vendee becomes that of an absolute vendee and the sale become an absolute sale on that date.
3. The subsequent proceedings taken to obtain possession were not necessary to establish the title of the vendees. Nor do we consider that the proposed compromise had any effect in postponing the rights of the present plaintiffs to absolute ownership. In that compromise there was a provision that if the mortgagors failed to carry out their part of the agreement the compromise would cease to operate and the foreclosure would take effect. We are of opinion, therefore that the Subordinate Judge was right when he found that on 19th September 1878 the present plaintiffs, and not the mortgagors, were the owners of the property mortgaged.
4. But the learned Subordinate Judge went on to hold that the mortgagors were at the time of the execution of the mortgage trespassers and made the mortgage as such. In this we consider that the Subordinate Judge was wrong, and this mistake vitiates his finding. At the time of the mortgage the mortgagors had a right in the mortgaged property as ex-proprietors and it cannot be said that by their mortgage they conveyed no rights to the mortgagees. The mortgagees themselves were treated as being tenants and a suit was brought for their ejectment along with their mortgagors in the year 1903. That suit was decreed against the original mortgagors who were ejected, but the Revenue Court declined to eject the mortgagees on the ground that they were mortgagees of proprietary rights. This finding was not challenged at the time by any suit brought in the civil Court. But that is immaterial in so far as the suit for redemption is concerned.
5. There is nothing in the proceedings of 1903 which could give to the mortgagees any other title than that of a mortgagee, and if the present plaintiffs can be shown to have a right to redeem such a mortgage their failure to eject the mortgagees at that time operates as no bar to redemption. Indeed, in our opinion, the fact that the present defendants accepted the position of mortgagees precludes them from acquiring a proprietary title by adverse possession. Possession, for however long a period, by a mortgagee can give him no title other than the title which he has acquired by his mortgage. The mortgage therefore if it can be held to have been a mortgage conveying any rights, is still in existence and can be redeemed by any persons entitled by law to redeem such a mortgage. In our opinion, the mortgage was executed by persons who had an interest in the property mortgaged as exproprietary tenants. The right of those persons as exproprietary tenants was extinguished by their ejectment in the year 1903. But those rights did not escheat to the Grown. They reverted to the zamindar as was held in the case of a mortgage of a fixed rate tenancy by a Pull Bench of this Court in the case of Tulsi Bam Sahu v. Gur Dayal Singh [1911] 33 Al. 111. The persons in whom the exproprietary rights vested were the present plaintiffs who were the owners of the proprietary title [in the mortgaged property, and, in our [opinion, they have at the present time an interest in the property mortgaged jwhich entitles them to claim redemption.
6. We accordingly allow this appeal with costs including in this Court counsel's fees on the higher scale, set aside the decree of the Court below and restore the decree of the Court of first instance.