1. The second mortgage is the plaintiff (appellant) and he seeks to redeem the first mortgagee defendant 2. Defendant 2 has succeeded in the lower appellate Court on the following conclusions: (a) that sixty odd rupees of the principal sum of Rs. 200 (first mortgage amount) was still due to defendant 2 on date of suit; and (b) that under the terms of the first mortgage, defendant 2 was entitled to hold possession of the lands till that sixty odd rupees was also wiped out by the usufruct. The contention of the plaintiff in second appeal is (a) that as the sixty odd rupees represent irrigation casses and other cesses due upon other lands of the mortgagor (contained in the same pattah as the mortgaged land) and not cesses due on the mortgaged land (No. 183) itself, defendant 2 was not entitled to add that sum to the principal of the mortgage amount and cannot claim a right to remain in possession till that sum of Rs. 60 odd is also discharged out of the usufruct; (b) that even if the irrigation and other casses are treated as due upon the mortgaged land (No. 183) also, S. 42, Act 2 of 1864, under which sales held for arrears of land revenue are free of prior incumbrance, does not apply to sales held for recovery of irrigation cesses, etc., and hence the mortgagee was not bound to pay them under Cl. 72(b) of the Transfer of Property Act, (which requires a mortgagee to spend money for the preservation of the mortgaged property from forfeiture or sale and empowers him to add that sum to the principal money); and (c) that even if the contention (b) is wrong, the second mortgagee is entitled to redeem the first mortgage on payment of the said sum of Rs. 60 odd notwithstanding that the first mortgage deed fixes no definite term for the redemption of the mortgage and provides for the mortgagee remaining in possession of the land till the principal sum with interest is satisfied out of the net usufruct after paying assessments, etc.
2. As regards the first contention, the case of Secretory of State v. Pisipati Sankarayya(1), is clear authority that, though for the sake of convenience separate amounts are entered as the revenue due upon separate numbers held under a single pattah, the demand of the Sircar and the liability of the landholder is a consolidated demand, and liability for the entire sum mentioned in the pattah is charged upon every land contained in the revenue pattah, that “we must construe S. 2 as declaring all the land of a landholder to be security for all the land revenue payable by him.”
3. It follows that the Government revenue due upon other lands contained in to same pattah issued in the mortgagor's name is revenue due upon the mortgaged land also.
4. Coming to the next contention there are two answers to it. The first is that under Section 76(c) of the Transfer of Property Act, the mortgagee must, in the absence of a contract to the, contrary, pay the Government revenue and all other charges of a public nature accruing due in respect thereof. Hence, whether the mortgaged property is liable to be sold for these cssses free from prior incumbrance or not, these cesses formed part of the Government revenue accruing due in respect of the property and the mortgagee is bound to pay them in the absence of a contract to the contrary. There is no such contract to the contrary gatherable from the terms of Ex. 1, and, on the other hand, there is a special clause which says that “in case the mortgagor fails to pay Sircar assessment, the mortgagee should pay the same to the village officials” out of the net profits.
5. The second answer to this contention is that irrigation and other cesses charged upon the land are part of the land revenue itself and, in our opinion, Madras Act 2 of 1864, S. 42, does apply to sales for the recovery of those cases. Mr. B. Narasimha Rao, counsel for the appellant, ingeniously argued that as Section 2 of the Madras Act 7 of 1865, says: “arrears of water cesses shall be realized in the same manner as arrears of land revenue are “or may be realized,” that as similar expressions in the Abkari and Income-tax Acts have been construed: see Ramachandra v. Pitchaikanni(2), to mean that only the procedure as to the attachment and bringing to sale of the defaulter's property mentioned in Act 2 of 1861 was intended to be applied to sales for the recovery of arrears due by defaulting abkari renters and income-tax payers, and not that the sales of properties held for the recovery of such arrears was free from prior incumbrance: that therefore the sale held for the recovery of arrears of irrigation cesses could not have the benefit of S. 42, Act 2 of 1864. We think however that this argument ignores the distinction between irrigation ceeses and the sums due by abkari and income-tax defaulters. Under Ss. 1 and 2, Act 2 of 1864, irrigation cesses have been made part of the public revenue due on the land itself and the provisions of Act 2 of 1864 apply therefore to the recovery of irrigation cesses; and the Government need not have recourse to S. 2, Act 7 of 1865, at all to claim the powers of attachment and sale, etc., given under Act 2 of 1864 for the recovery of arrears of public revenue charged upon the land. S. 2, Act 7 of 1865, must, in our opinion, be treated as superfluous and not as restricting or modifying or repealing the provisions of S. 42, Act 2 of 1864, as regards sales for arrears of irrigation cesses, etc. Our above view is supported by the circumstance that the appellant's learned counsel, Mr. B. Narasimha Rao, who argued his client's case with much ability and strenuousness, was unable to refer us to any case in which it had been held that S. 42, Act 2 of 1864, did not apply to sales held for the recovery of arrears of irrigation cesses though it is now almost fifty years since the Irrigation Cess Act was passed. On the other hand there is a case, Veeranan Ambalam v. Karuppayya Pillai(3), in which Benson and Sundara Aiyar, JJ., directly decided that Section 42 of the Revenue Recovery Act, did apply to sales for recovery of irrigation cesses.
6. Coming to the last contention, it has been recently held by the Privy Council in Mt. Bakhtawar Begam v. Mt. Husaini Khanam(4) that “ordinarily and in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period.’ On the true construction of Ex. 1, we are sotisfied that the mortgagor and the mortgagee both agreed that the principal mortgage money and the interest thereon cannot be paid up except through the enjoyment of net profits by the mortgagee; and this provision in favour of the mortgagee is not illegal according to Indian law unless perhaps the terms of the mortgage are such that future redemption is made practically impossible.
7. In the result the second appeal is dismissed, but under the circumstances there will be no order as to costs in the second appeal.
S.N/R.K
8. Appeal dismissed.