Narayan, J.:— This is a plaintiff's appeal arising out of a suit for declaration of title and recovery of possession in respect of certain raiyati lands. These lands had been recorded in the survey in plots nos. 34, 50, 290 and 291 under khata no. 91 and were the raiyati lands of one Ramparbesh Kandu and Ramjanam Kandu. The landlords were Tilak Ojha and Someshwar Ojha, ancestors of one Radha Ojha who owned 15.45½ acres of milki lakheraj lands recorded in khewat no. 11. The disputed lands were under this khewat and carried a jama of Rs. 10-5-0. The milki lakheraj property had been given in usufructuary mortgage to one Musammat Parbati Kuer, widow of Sheo Tahal Misra and the ancestor of defendants 1 and 2 under a rehan deed, dated the 19th of Shravan 1291 Fs., and under a sale-deed, dated the 22nd August, 1940, it was sold to the plaintiff. On 7th August, 1941 the plaintiff redeemed the rehan and got possession of the entire milki property exclusive of the raiyati lands aforesaid. The case made out by the plaintiff was that it was after redemption that he came to know that the defendants 1 and 2 had purchased these lands at a court sale in execution of a decree for rent obtained by them as mortgagees, and that when he came to know of it he offered them the amount, for which they had purchased the lands, but that they refused to part with them. Hence the suit for possession. The defendant no. 3 was impleaded on the allegation that he was a subsequent transferee with regard to the disputed lands under a farzi and a fraudulent sale-deed executed in his name by defendants 1 and 2.

The claim for possession was resisted inter alia on the ground that these lands which had been acquired during the continuance of the mortgage could not be, deemed to be an accession to the mortgaged property.

The court of first instance held that the plaintiff was entitled to get back the lands on payment of Rs. 76-5-0 the amount for which the defendants 1 and 2 had purchased the lands at the court sale. On appeal his decision was reversed by the learned Subordinate Judge, who was of the opinion that the acquisition was made by the mortgagee for his own benefit and was never treated as merged in the mortgage security. He further held that it was not open to the plaintiff to claim this land after redemption, and that if he treated this property as an accession, to the mortgaged property, he ought to have offered the amount of Rs. 76-5-0 at the time when he redeemed the mortgaged property.

The main question which we have to decide is whether the acquisition of these raiyati lands by the mortgagee during the period the mortgage was subsisting would be deemed to be an accession to the mortgaged property. section 63 of the Transfer of Property Act runs as follows:—

“Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, received any accession, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary; be entitled as against the mortgagee to such accession.

Where such accession has been acquired at the expense of the mortgagee, and is capable of separate possession or enjoyment without detriment to the principal property, the mortgagor desiring to take the accession must pay to the mortgagee the expense of acquiring it. If such separate possession or enjoyment is not possible, the accession must be delivered with the property; the mortgagor being liable, in the case of an acquisition necessary to preserve the property from destruction, forfeiture or sale, or made with his assent, to pay the proper cost thereof, as an addition to the principal money, with interest at the same rate as is payable on the principal, or where no such rate is fixed, at the rate of nine per cent, per annum.

In the case last mentioned the profits, if any, arising from the accession shall be credited to the mortgagor.

Where, the mortgage is usufructuary and the accession has been acquired at the expense of the mortgagee, the profits, if any, arising from the accession shall, in the absence of a contract to the contrary; be set off against interest, if any, payable on the money so expended.”

This section and section 70 of the Transfer of Property Act are both based on the principle enunciated by the maxims accessio cedit principal (the increase follows the principal) and accessorium non ducit sed sequitur suum principali (that which is the accessory or incident does not lead but follows, its principal). It is, however, necessary for the application of this section and section 70 that the property or right claimed by the mortgagor under this section or by the mortgagee under section 70 should constitute an accession. The word “accession” has not been defined in the Act, and in the Roman Law ‘accessio’ is the general name given to every accessory thing, that has been added to a principal thing from without, and has been connected with it, whether by the powers of nature or by the will of man, so that in virtue of this connection, it is regarded as part and parcel of the thing. The question whether a particular thing can be regarded as a part and parcel of another thing has to be decided in the light of various facts—in some cases upon the intention of the parties and in some upon the law applicable thereto and in some upon both. There have been cases even in this Court in which it has been pointed out that the question whether a mortgagee treated the acquisition as merged in mortgage security is a question of intention. Das, J., in the case of Ram Rai v. Maheshwar Prasad Singh observed as follows:—

“I have no doubt whatever that tenancy lands which are acquired by a mortgagee in possession by virtue of an ejectment decree form an accession to the mortgaged property, and that the mortgagor is entitled to such lands on redemption, provided he pays to the mortgagee the expense of acquiring it.” This case had once been remanded by their Lordships and in the remand order Das, J. had said as follows:—

“So far as the tenancy lands of Harakh are concerned (and there is no dispute that the 9 bighas of Harakh were tenancy lands) the question is a little more difficult. It appears that the mortgagees in their suit for rent against Harakh got a decree for ejectment against him. The learned Judge on behalf of the respondents argued that as soon as ejectment takes place the raiyati interest is extinguished and the landlord gets into, possession freed from the tenancy. That undoubtedly is so; but the question still remains whether the mortgagees treated these acquisitions as merged in the mortgage-security or not. The question is again one of intention and I am not satisfied that the learned District Judge has properly considered all the evidence in the case.”

This was, however, a case in which the tenancy land had been acquired by a mortgagee in possession by virtue of an ejectment decree. This case cannot be regarded as a direct authority in the present case in which the acquisition was made by virtue of a purchase at a court sale at which even a stranger could offer bids and purchase the property. In my opinion, the principle as enunciated by Das, J. and James, J. in the case of Moghab Pande v. Ragho Pande is fully applicable to the facts of this case. His Lordship Das, J., with whom James, J., agreed, observed as follows:—

“In my opinion if it appears that by reason of his position as mortgagee in possession, he has had peculiar facilities for acquiring the properties in question, such properties should be regarded as an acquisition to the mortgaged property. If, on the other hand, it appears that in regard to such acquisitions, the mortgagee in possession is in the same position as any third party, then the properties so acquired should not be regarded as an accretion to the mortgaged property.”

Their Lordships quoted a passage from the judgment of the Judicial Committee in the case of Kishendatt Ram v. Mumtaz Ali Khan, which passage was also quoted with approval by the Judicial Committee in the case of Sorabjee v. Dwarkadas Ranchhoddas, decided by Their Lordships in the year 1932. The passage runs as follows:—

“Their Lordships are not prepared to affirm the broad proposition that every purchase by a mortgagee of a sub-tenure existing at the date of the mortgage must be taken to have been made for the benefit of the mortgagor, so as to enhance the value of the mortgaged property, and make the whole, including the sub-tenure, subject to the right of redemption upon equitable terms. It may well be that when the estate mortgaged is a zamindari in Lower Bengal, out of which a putnee tenure has been granted, or one within the ambit of which there is an ancient mokurreree istimrari tenure, a mortgagee of the zamindari, though in possession, might purchase with his own funds and keep alive for his own benefit that putnee or mokurreree. In such cases the mortgagee can hardly be said to have derived from his mortgagor any peculiar means or facilities for making the purchase which would not be possessed by a stranger, and may therefore be held entitled, equally with a stranger, to make it for his own benefit. In such cases also the putnee, if the putneedar failed to fulfil his obligations, would not be resumable by the zamindar, and the zamindari would always have been held subject to the mokurreree.”

Of course, in the case which Das and James, JJ., had to decide their Lordships had to hold that the occupancy holdings that had been sold were accretions to the mortgaged property, because it had been found as a fact and on the basis of the law then in force that the occupancy holdings which had been sold were not transferable by custom, though their Lordships pointed out that the mortgagee in possession was in the same position as any third party and could have acquired the disputed holdings, just as a stranger would, because the holdings were non-transferable they thought that they were bound to hold that the holdings would be accretions to the mortgaged properties, inasmuch as it was not open to a stranger to purchase them. But the test laid down by their Lordships has to be borne in mind, and the view which their Lordships took is amply supported by the observations of their Lordships of the Judicial Committee in the case of Kishendatt Ram v. Mumtaz Ali Khan. The Punjab Chief Court relving on this Privy Council decision held in the case of Girdhari Ram v. Muhammad Karm Dad Khan that it is competent to a mortgagee during the continuance of the mortgage to purchase an absolute occupancy tenure for himself and to treat it as his separate property after the mortgage comes to an end. The point now stands further settled by the recent decision of the Privy Council in Sorabjee v. Dwarkadas Ranchhoddas, in which the question: was whether occupancy rights in two fields-acquired by the mortgagees during the continuance of the mortgage were recoverable upon redemption as being accessions to the mortgaged property within section 63 of the Transfer of Property Act. Their Lordships held in this case that section 63 of the Transfer of Property Act cannot be read as entitling the mortgagor to recover acquisitions made by the mortgagee for his own benefit in circumstances which do not bring him within section 90 of the Trusts Act., Section 90 of the Trusts Act lays down as follows:—

“Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted in gaining such advantage.”

The test, therefore, is whether the mortgagee availing himself of his position as such has gained an advantage in derogation of the rights of other persons interested in the property, or whether as representing the persons interested in the mortgaged property he has gained any particular advantage. Das and James, JJ., in Maghab Pande v. Ragho Pandey substantially laid down the same test, and the decision would now rest on the question whether by his purchase the mortgagee in possession has gained any advantage which he could not have otherwise than as a mortgagee, or whether he is in the same position as any third party. If his position is the same as that of any third party, then the properties acquired, by him cannot be regarded as an accretion to the mortgaged property. It need not be said that anybody, even the mortgagor himself could offer bids at the court sale and thus purchase the property, and it can, by no means, be asserted that the mortgagee by purchasing the property has gained an advantage in derogation of the rights of other persons interested in the property. In my opinion, the decision of their Lordships of the Judicial Committee in the case of Sorabjee v. Dwarkadas is a settlor of the question raised in this case, and it appears to me to be clear that according to the principle expounded in the two judgments of the Privy Council the defendants in this case are entitled to retain the benefit of their acquisitions for themselves.

The learned Subordinate Judge has further held that at the time when the redemption was made, or at the latest by September 1941 the plaintiff came to have knowledge of this acquisition by the mortgagees, but that still when he redeemed the property he did not make any attempt to get possession of this property on payment to the mortgagor the amount expended by him in making the purchase of the lands in dispute. The learned Subordinate Judge has also pointed out that the plaintiff raised no objection to the name of the defendant no. 3 being recorded in respect of the suit lands in the Canal department. As these are findings of fact, I should quote the following passage from the judgment of the learned Subordinate Judge:—

“The plaintiff has been examined as P.W 1. He has admitted that he saw the suit lands in Bhado 1348 and they were in possession of the defendants 1 and 2, that is to say by September, 1941, he had knowledge of the acquisition by mortgagees. This suit was filed on 27th September, 1943. It is therefore clear that the mortgagee did not take any step to acquire the suit lands for about two years after knowledge of the purchase by the mortgagees. In 1942-1943 after the sale and the redemption the defendants 1 and 2 applied in the canal department for the plaintiff being recorded in the canal department in respect of the bakasht lands of the redeemed property and the defendant no. 3 their purchasers being recorded in respect of the lands. The plaintiff was examined in that case. There is nothing to show that he raised any objection to defendant no. 3 being recorded in respect of the suit lands in the canal department. P.W 1 has himself admitted that he had already ploughed the zerat lands at the time of the application for mutation and he had deposed in the canal department that his name should be entered in respect of the 4 bighas 10 cottahs, that is to say the zerat lands only. In my opinion this renders it highly probable that the defendants' version that the plaintiff was informed about the purchase at the time of redemption is true.”

This raises the question whether it is open to a mortgagor to claim the accession subsequent to the redemption. The decision of this Court in Ram Lagan Singh v. Mrs. Mary Coffin throws some light on this question. In this case Adami, J., with whom Macpherson, J., agreed, observed as follows:—

“Under section 63 of the Transfer of Property Act, if the plaintiffs had desired to have possession of these lands acquired by defendant no. 1, they should, on the expiry of the mortgage, have tendered to defendant no. 1 the costs incurred by them in making the acquisitions. The plaintiffs never treated the lands as accessions or made any claim.”

But I do not think it is necessary for us in this case to express ourselves on this point when we have to agree with the learned Subordinate Judge that the mortgagee is entitled to treat these lands as separate and to retain the benefit of the acquisition for himself. This second question, which also has been decided by the learned Subordinate Judge against this appellant, need not be decided by us when the decision on the first point concludes this appeal.

In the result, this appeal fails, and is dismissed with costs.

Imam, J.:— The principal question for decision in this appeal is as to whether the land in suit was an accretion to the mortgaged property. If the decision be that it is, obviously the plaintiffs suit must succeed.

The land in suit belonged to the ancestors of Radha Ojha and had been rehaned to one Musammat Parbati, ancestor of defendants 1 and 2. Radha Ojha sold the milkiat interest to the plaintiff by a sale deed dated the 22nd August, 1940. The plaintiff redeemed the rehan from defendants 1 and 2 on the 7th of June, 1941. While the mortgage subsisted, defendants 1 and 2 in execution of a rent decree obtained by them as mortgagees, purchased it at the auction sale for a sum of Rs. 76-5-0. Subsequently they sold the land in suit by a deed dated the 10th of September, 1941, to defendant no. 3.

The Munsif held that the plaintiff had not been able to prove any relationship between defendants 1 and 2 and defendant no. 3 or that the sale by the former to the latter was farzi in character. This finding was not challenged before the lower appellate court. The Munsif, however, found that the land in suit was an accession or accretion to the mortgaged property, and, therefore, the plaintiff was entitled to recover possession on his paying the sum of Rs. 76-5-0 which was the sum paid by defendants 1 and 2 when they purchased it at the auction sale. The Subordinate Judge, however, held that the land in suit was not an accession or accretion to the mortgaged property and that it had been acquired by defendants 1 and 2 for their own benefit and was being treated by them as a separate acquisition.

As far back as 1879 their Lordships of the Judicial Committee in the case of Raja Kishen Datt Ram v. Raja Mumtaz Ali Khan considered this question, and that decision came to be considered by their Lordships of the Judicial Committee in Sorabjee v. Dwarkadas Ranchhod Das. Having regard to the decision in this case it is now quite plain that in considering the question as to whether a purchase by a mortgagee during the subsistence of his mortgage is an accession to the mortgaged property, the Court will have to bear in mind the provisions of section 63 of the Transfer of Property Act as well as section 90 of the Trusts Act. Their Lordships, in this case, quoted a passage from the jugdment of the Board in Raja Kishen Datt Ram's case where it had been held:

“Their Lordships are not prepared to affirm the broad proposition that every purchase by a mortgagee of a sub-tenure existing at the date, of the mortgage must be taken to have been made for the benefit of the mortgagor, so as to enhance the value of the mortgaged property, and make the whole, including the sub-tenure, subject to the right of redemption upon equitable terms. It may well be that when the estate mortgaged is a zamindari in Lower Bengal, put of which a putnee tenure has been granted, or one within the ambit of which there is an ancient mokurreree istimrari tenure, a mortgagee of the zamindari, though in possession, might purchase, with his own funds and keep alive for his own benefit that putnee or mokurreree. In such cases the mortgagee can hardly be said to have derived from his mortgagor any peculiar means or facilities for making the purchase which would not be possessed by a stranger, and may therefore he held entitled, equally with a stranger, to make it for his own benefit. In such cases also the putnee, if the putneedar failed to fulfil his obligations, would not be resumable by the zamindar, and the zamindari would always have been held subject to the mokurreree.”

In Sorabjee's case, their Lordships stated that the equitable principles applied by their Lordships in Raja Kishen Datt Ram's case to acquisitions by a mortgagee had then been embodied by section 90 of the Trusts Act, 1882, in a wider rule dealing with acquisitions by tenants for life, co-owners, mortgagees and other qualified owners. Their Lordships then quoted section 90 of the Trusts Act. They went on then to consider the provisions of sections 63 and 64 of the Transfer of Property Act and observed:—

“In the present case it is sufficient to say that their Lordships are clearly of opinion that section 63 of the Transfer of Property Act cannot be read as entitling the mortgagor to recover acquisitions made by the mortgagee for his own benefit in circumstances which do not bring him within section 90 of the Trusts Act”

On the facts of the case, their Lordships held that occupancy rights were acquired by the mortgagees of Rajaram's share who were also co-sharers with him in the mauza, for their own benefit, and to give the plaintiff any claim to them as the owner of a one anna share in the mauza it was incumbent on him to show that they were acquired under such circumstances as to bring them within the provisions of section 90 of the Trusts Act. No such case was set up in paragraph 10 and Schedule K of the plaintiff's rejoinder in which these occupancy rights were claimed as accretions to the lands in mortgage, no issues had been framed in regard to it and it had not been considered or decided in the lower courts. It seems to me, therefore, that in a case of this kind one has to look at the entire evidence and the circumstances in the case to discover whether the mortgagee by availing himself of his position as such gains an advantage in derogation of the rights of other persons interested in the property, namely, in this case the plaintiff. Defendants 1 and 2 had no doubt instituted a suit for rent against the tenant of the land in suit and had obtained a decree. In execution of that decree they were auction-purchasers at the execution sale. Did they in bidding at the auction sale held by the court avail themselves of their position as mortgagees to gain an advantage in derogation of the rights of the mortgagor and through him the plaintiff. It is to be remembered that defendants 1 and 2 as mortgagees did not purchase the land in suit by a private sale. They had actually obtained a decree as mortgagees, but at the sale in execution of the decree they made a bid which any stranger could have done and would have been entitled to do. At the stage of sale they could hardly be said to have been availing themselves of their position as mortgagees to gain an advantage in derogation of the rights of the mortgagor. An auction sale held by a court is open to all bidders, and in my opinion, if a mortgagee bids at such a sale, he is not bidding as a mortgagee. The essential question to be looked at is as to whether the mortgagee at the time he bid at the sale did so with the intention of making an acquisition to the mortgaged property, or did so with the intention of making a separate acquisition for himself. The mere act of purchase at the sale could not in itself be regarded as a conduct from which to draw an inference that the mortgagee had intended the purchase to be an accession to the mortgaged property, nor could it be said that the purchase itself at the auction sale was the result of the mortgagee enjoying a peculiar benefit as against strangers and thereby had gained an advantage in derogation of the rights of the mortgagor in the property.

This question had come up for consideration before a Division Bench of this Court (Das and Adami, JJ.) in the case of Maheswar Prasad Singh v. Babu Ram Rai where their Lordships held:

“But though the mortgagee may treat the acquisition as accretion to the mortgaged property, he may, if he chooses, keep them for his own benefit and distinct from the mortgaged properties.”

“It was for the mortgagees to treat these lands as merged in the mortgage security or it was for them to keep them alive as tenancy lands distinct and apart from the mortgage security.”

Their Lordships then referred to certain documents which showed that the mortgagees had treated these lands as kasht lands and were of the opinion that the learned District Judge had committed an error in not taking the statements made in these documents as strong evidence of the intention of the mortgagees. A remand was accordingly ordered. After remand the case was heard by Das and Ross, JJ. (see, A.I.R 1925 Patna, 336) when Das, J., observed that this view which he took on the previous occasion was wrong. Ross, J., merely agreed to the order proposed by Dass, J. I am doubtful if the decision in A.I.R 1925 Patna, 336 can override the decision in 2 Patna Law Times, 225. In my opinion Das, J's view in 2 Patna Law Times, 225 is the more correct view.

Similarly, in the case of Moghab Pande v. Ragho Pande a Division Bench of this Court held that the question whether a property acquired by a mortgagee in possession is an accretion to the mortgaged property or not depends upon the entire facts and circumstances of the case, and further that, if it appears that by reason of his position as a mortgagee in possession he has had peculiar facilities for acquiring the properties in question, such properties should be regarded as an acquisition to the mortgaged property. If, on the other hand, it appears that in regard to such acquisitions, the mortgagee in possession is in the same position as any third party, then the properties so acquired should not be regarded as an accretion to the mortgaged property.

The Subordinate Judge in the present case had stated that the defendant's evidence that he had purchased the suit lands in an, independent capacity for his own cultivation and was treating the purchase as a separate acquisition was not contradicted by any evidence worth the name. While he noticed that the defendant had not filed any documentary evidence in support of the oral evidence, he was of the opinion that the balance of probabilities lay in favour of the view that the land which had been acquired at a rather cheap price by the mortgagees was acquired by them for their, personal benefit and was being treated as a separate acquisition. I would regard this finding as a finding to the effect that it was never the intention of the mortgagees to treat the land in suit as having merged in the mortgage security, but rather to treat it as a separate acquisition. There was one strong circumstance, in my opinion, in favour of the view taken by the Subordinate Judge and that was that at the time of redemption the plaintiff had knowledge of the auction purchase made by defendants 1 and 2 and had not made any claim to the land in suit at that time. The plaintiff's story that he had no knowledge of this at the time of redemption was disbelieved by the Subordinate Judge. It seems to me, therefore, that at the time of redemption, the plaintiff treated the property as a separate acquisition of the mortgagees and not as an accession to the mortgage security.

I may just as well make a reference to the decision of this Court in Ram Lagan Singh v. Mrs. Mary Coffin where Adami, J. observed that under section 63, if the mortgagor desired to have possession of accession, he should on the expiry of the mortgage, tender to the mortgagee the costs incurred by him in making the acquisitions. If the mortgagor never treated the lands as accession or made any claim and allowed the mortgagee to remain in possession of the lands as occupancy raiyat, he could not subsequently claim the accessions. The binding effect of this decision is somewhat weakened by Macpherson, J., merely agreeing to the order proposed. While I was at the Bar, I. always understood from that learned Judge that this did not necessarily indicate agreement with the reasonings given by the other learned Judge. Be that as it may, I think it will be fair to infer from the conduct of the plaintiff in not claiming, at the time of redemption, the land in suit as an accession to the mortgage security that he regarded it as an acquisition by the mortgagee for his own benefit. The finding of the lower appellate court that the plaintiff had knowledge at the time he redeemed the mortgage of the purchase made by the defendants 1 and 2 is binding in second appeal. The conduct of the plaintiff, in my opinion, gives strong corroboration to the evidence on behalf of the defendants that the mortgagees in possession did not intend to treat the land in suit as an accession to the mortgage security.

Reliance was placed upon the decision of this Court in Parmeshwar Rai v. Ramrudra Prasad Sinha. That case, however, is distinguishable as the mortgagee had acquired a non-transferable holding not as a bidder at an auction sale but otherwise, and it could fairly be said that he did acquire it in circumstances which gave him a peculiar facility in making the acquisition which a stranger or a third party could not have had. Indeed Mohammad Noor, J., referred to the decision of their Lordships of the Judicial Committee in Sorabji's case and observed that the decision was based, on the evidence and the facts of that case which proved to the satisfaction of their Lordships that the mortgagee had not acquired the property in circumstances which would show that such an acquisition must be regarded as an accession to the mortgage security. It is to be noticed that in the decision of this Court in Moghab Pande v. Ragho Pandey to which reference has already been made, although the acquisition was regarded as an accession to the mortgage security, having regard to the fact that the acquisition was made by way of purchase from the occupancy tenants by the mortgagees, yet it was recognised that where the mortgagee makes an acquisition in circumstances which place him in the same position as any third party, then the property so acquired should not be regarded as an accretion to the mortgage property.

In my opinion, the decision of the Subordinate Judge must be affirmed and the appeal dismissed with costs.

S.H

Appeal dismissed.