In this appeal which arises out of a suit brought by the Plaintiff-Respondent to recover a certain sum of money which is made up of loans advanced upon mortgage-bonds, registration expenses and monies paid on account of Government revenue and road and public works cesses due in respect of the mortgaged property, four points have been urged before us on behalf of the Defendant-Appellant, first, that the suit was not maintainable by reason of misjoinder of causes of action; second, that the payment of Rs. 500 which was disputed had not been proved; third, that the Plaintiff being a part ??? of the estate, a share of which, was mortgaged to him, was not entitled to the benefit of sec. 9 of Act XI of 1859; and, fourth, that the amount pud on account of cesses could not be added to the ??? and recovered by the sale of the mortgaged property.
As to the first point it is sufficient to say that the amount at which the appeal is valued makes it incompetent to the Appellant to raise it.
As to the second point, it not being raised in the memorandum of appeal we did not think it fit to allow it to be urged, having regard to the clear finding on the point by the Court below.
The third point is not altogether free from doubt.
It is contended by the learned vakil for the Appellant that as sec. 9 of Act XI of 1859, excludes the case of a proprietor of a share of an estate in arrear when providing for the receipt of money as a deposit in the early part of the section, the concluding portion of the section which provides for a mortgagee making a deposit under the section acquiring a lien on the share of the estate protected, must be held to be inapplicable to the case of a mortgagee who is also a part proprietor; and as the Plaintiff is admittedly a part proprietor of the estate, he is not entitled to any lien under the section. We are of opinion that this contention is so far correct, that sec. 9 does not entitle the Plaintiff to claim a lien on the mortgaged property for sums paid by him on account of Government revenue.
But it has been argued by the learned vakil for the Plaintiff-Respondent that though sec. 9 of Act XI of 1859 may not give a mortgagee who is also a part proprietor the benefit of the lien spoken of in the concluding part of the section, it does not disentitle hiss to any such lien if on general principles of justice, equity and good conscience, he is entitled to it. So far, we think, this contention on behalf of the Respondent is correct. sec. 9 of Act XI of 1859 evidently does not negative it. Is the mortgagee who is also a part proprietor entitled, then, according to the general principles of justice, equity and good conscience to the benefit of any such lien, or does the fact of his being a part proprietor of the estate disentitle him to the benefit of the lien which he would otherwise have been entitled to as a mortgagee? We are of opinion that this question should be answered in favour of the Plaintiff-Respondent. For, the contention of the Plaintiff that he is entitled to such a lien finds support in the following dictum of their Lordships of the Privy Council, in the case of Nogendra Chandra Ghosh v. Sreemutty Dassi where their Lordships say:—
“Considering that the payment of the revenue by the mortgagee will prevent the talook from being sold, their Lordships would, if that were the sole question for their consideration, find it difficult to come to any other conclusion than that the person who had such an interest in the talook as entitled him to pay the revenue due to the Government, and did actually pay it, was thereby entitled to a charge on the talook as against all persons interested therein for the amount of the money so paid.”
It is argued for the Appellant that this dictum of their Lordships which was laid down in a case decided with reference to Act I of 1845, which was the Sale Law then in force, must be taken to be modified in its operation by reason of the Legislature having subsequently changed the law and made an express provision in sec. 9 of the present Sale Law Act XI of 1859.
We are unable to accept tiffs argument as correct. If sec. 9 of Act XI of 1859 applies to the case, the Plaintiff has the lien he claims under that section. If it that the Legislature has made an express provision for the case which makes the general principle laid down in the dictum quoted above inapplicable to it. The only way in which the change in the law as made by sec. 9 of Act XI of 1859, could be said to be operative in restricting or qualifying the principle laid down in the dictum of the Privy Council quoted above, would be by saying that sec. 9 of the Sale Law by excluding the case of a part proprietor from its operation, intends to deprive a mortgagee who is also a part proprietor, of the lien which he would otherwise have had; But as we have said above, this effect cannot be attributed to sec. 9. That being so, we think the dictum quoted above is authority for the view we take. It has been said that dictum has been interpreted by a Full Bench of this Court in the case of Kinu Ram Das v. Mozaffer Hossein to be inapplicable to the case of a part proprietor. That no doubt is so; and, if the lien in this case had been claimed by the Plaintiff only as a part proprietor of the estate protected, the decision of the majority of the Full Bench in the case of Kinu Ram Das v. Mozaffer Hossein would have been a Complete answer to such a claim. But as it is, the Plaintiff claims the lien not as a part proprietor but as a mortgagee, and the judgment of the majority of the learned Judges in Kinu Ram Das v. Mozaffer Hossein's case leaves the case of a mortgagee claiming a lien untouched. That being so that case does not stand in the way of the Plaintiff's claim succeeding. We may add that according to the English law also the case of a mortgagee claiming the benefit of the lien for payments made by him to protect the mortgaged property has been considered to stand upon an exceptional footing [see the case of Leslie v. French]. And the view we take is in accordance with that taken by the Madras High Court in the case of Perianna v. Marudainayayam.
It is argued that the Transfer of Property Act, sec. 72, by declaring that a mortgagee in possession can charge the mortgaged property for payments made by him on account of Government revenue, raises an implication that a mortgagee not in possession has no such right. We do not see that follows. We do not think that there is any thing in the Transfer of Property Act which militates against the view we take. For the foregoing reasons we are of opinion that the contention raised upon the third point on behalf of the Appellant must fail.
As to the fourth point no doubt the Plaintiff is not entitled to Claim any lien on account of payments made for road and public works cesses. Such payments were made, not to protect any interest of the Plaintiff which might otherwise have been imperilled, as sale for road and public cesses not passing more than the right, title and interest of the judgment-debtor. But though that is so and though the amounts paid on account of cesses must therefore be excluded from the mortgage decree, the Plaintiff is entitled to a personal decree against the mortgagor for such amounts, regard being had 10 the provisions of sec. 70 of the Contract Act. The view we take is in accordance with that taken by this Court in the case of Smith v. Dina Nath(5). No doubt, the inclusion of this claim in a suit upon a mortgage bond does involve a ??? of causes of action; but as we have already said, it is not open to the Appellant to raise the objection and it is a defect which is cured by sec. 573 of the Code of Civil Procedure, and the Court below having made a decree for the amount, we shall allow the decree to stand subject to the modification indicated above, namely, that the decree shall be a personal one and not form any part of the mortgage decree granted to the Plaintiff.
The result then is that subject to the modification indicated above, the decree of the Court below will be affirmed and this appeal dismissed with costs.
S.C.S
Appeal dismissed.