1. This is an appeal by the plaintiff in a suit for redemption of an usufructuary mortgage, dated 11th July 1881. On 28th August 1884, the equity of redemption was sold is execution of a money-decree against the mortgagor, and was purchased by the mortgagee. On 11th May 1907, the plaintiff took a conveyance of the equity of redemption from the heirs of the mortgagor, and on 19th May 1913, instituted this suit for recovery of possession upon redemption. The Courts below have dismissed the suit, on the ground that the plaintiff, by his purchase, has not acquired title to the equity of redemption and cannot claim to redeem the mortgage. The plaintiff appellant has controverted this view and has argued that the mortgagee, by his purchase of the equity of redemption on 20th August 1884, did not acquire an irredeemable title but became a trustee for the benefit of the mortgagor and might be called upon to submit to redemption. In support of this view, reliance has been placed upon the decisions in Erasappa Mudaliar Commercial and Land Mortgage Bank (1) and Pancham Lal Chowdhury v. Kishun Pershad Misser (2).
2. The first of these cases apparently assists the contention of the appellant but we are unable to accept as well founded the rule of law enunicated therein. We cannot affirm the proposition that whenever a mortgagee purchases the equity of redemption at a sale held in execution of a money-decree obtained by a stranger against the mortgagor, the mortgagee holds the equity of redemption as trustee for the mortgagor and for his benefit.
3. Neither principle nor authority supports this comprehensive proposition, which has, indeed, been expressly repudiated in the case of Sesha Ayyar v. Krishna Ayyangar (3), Kuttan Nayar v. Krishnan Mussad (4) and Ikkotha v. Chakkiamma (5). We are further of opinion that the broad rule formulated on behalf of the appellant is contrary to the decision of the Judicial Committee in Raja Kishendatt Dutt Ram v. Mumtaz Ali Khan (6), where the judgment of Knight Bruce, L.J, in Shaw v. Bunny (7) was quoted with approval. The question raised before the Judicial Committee was whether, when a landed estate has been twice mortgaged by the owner, so that there are several distinct mortgages not connected with each other, one first, the other second, and the first mortgagee having a power of sale duly exercises it, the second mortgagee becoming the purchaser, such a state of things prevents him from acquiring by means of the purchase that absolute and irredeemable title against the mortgagor which a stranger making the purchase would have acquired. The question thus formulated was answered in favour of the purchaser, and it was ruled that, in the absence of special circumstances to show that the second mortgagee had availed himself of the position as a mortgagee to procure some facility or advantage leading to the purchase or connected with it, he is precisely in the same position as a stranger purchaser: see also Kirkwood v. Thompson (8). This view is in accord also with the decision of the Judicial Committee in Khiarajmal v. Daim (9). That case is not an authority for the proposition that a mortgagee is under a disability to purchase the equity of redemption brought to sale at the instance of a stranger decree-holder, although the position might be different if the mortgagee himself acquired the equity of redemption at an execution sale held at his instance in contravention of the rule enunciated in Section 99 of the Transfer of Property Act.
4. As regards the judgment in Pancham Lal Chowdhury v. Krishan Pershad Misser , we are not unmindful of the dictum it contains, namely,; that as an established proposition of law, the purchase of the equity of redemption constitutes the mortgagee the trustee for the mortgagor. This observation however must be limited to the circumstances of the particular case then before the Court, namely, the case of a purchase by the mortgagee in contravention of the provisions of Section 99 of the Transfer of Property Act. We are clearly of opinion that the suit has been rightly dismissed by the Courts below, as at the date of its institution the plaintiff had no interest in the equity of redemption, which had finally vested in the mortgagee on 20th August 1884.
5. The result is, that the decree of the District Judge is affirmed and this appeal dismissed with costs.
V.B/R.K
6. Appeal dismissed.