Ramaswami, J.

1. The question that arises in this appeal is whether the plaintiffs ought to be granted a decree for redemption and accounts with respect to the properties described in schedule 4 of the plaint.

2. The dispute relates to khata No. 7, mouza Abdulpur Bujurg which is recorded in the name of Latafat Hussain and Nezamuddin. On 4-1-1923 Latafat executed an ijara deed with respect to 2 bighas 8 kathas 12 dhurs in the name of Lochan Mahto, who was karta of the joint family, which the defendants first party constitute. In 1934 or sometime before 1934 a rent suit was brought on behalf of the landlords against Latafat and Nezamuddin and in course of the execution of the decree Lochan Mahto made a deposit of the entire decretal amount under the provisions of Section 171, Bihar Tenancy Act. The deposit was made on 21-7-1937 and possession was given to Lochan of the entire holding No. 7 on 20-12-1937. A second rent suit was brought in 1937 by the landlords and in execution of the decree defendants 1st party purchased plots 140, 326 and 125 in the name of Sahdeo Singh. On 23-11-1941 the plaintiffs purchased the land described in Schedule 4 of the plaint from Nezamuddin. The property purchased included plots 140 and 328 which Sahdeo had purchased in execution of the rent decree in the year 1939. The plaintiffs brought the suit alleging that Sahdeo was the benami-dar of defendants 1st party and that the purchase of plots 140, 326 and 125 was really on behalf of the latter. It was said that defendants 1st party committed deliberate default in payment of rent, on account of which the rent suit was brought and the holding was put to sale in the execution case. The plaintiffs claimed that the purchase made by Sahdeo in 1939 must be deemed to be for the benefit of the mortgagors and the equity of redemption was not extinguished. The plaintiffs asked that on payment of money which the defendants 1st party had deposited under Section 171, Bihar Tenancy Act, a decree for redemption ought to be granted by the court and the plaintiffs should be placed in possession of the plots which they had purchased. The plaintiffs also claimed that defendants 1st party should render accounts of the produce of the land in dispute. The substantial ground of defence was that there was no fraud on the part of the defendants 1st party, that Lochan had advanced the money for deposit from his personal account, that Sahdeo was not benamidar of defendants 1st party and that the plaintiffs were not entitled to a decree for redemption or to rendition of accounts. Upon a consideration of the evidence the Munsif held that defendants first party had really taken ijara in 1923 from Latafat; the purchase in the name of Sahdeo was made on be-half of the defendants 1st party and that the plaintiffs were entitled to redeem the properties which they had purchased. The Munsif directed that a commissioner will be appointed for taking account of the produce of the land from defendants first party and if any balance is struck in favour of the defendants first party, the plaintiffs will have to deposit that amount and the defendants first party will deliver possession of the mortgaged lands to the plaintiffs. But if any balance is struck in favour of the plaintiffs the defendants first party will have to pay that amount also. The defendants first party will be entitled to claim set-off of Rs. 106/- with the statutory rate of interest from 21-7-1937, which is the date of deposit.

3. The decision of Munsif has been affirmed by the learned Subordinate Judge in appeal.

4. The principal questions argued are : (1) whether the purchase made by Sahdeo in 1939 of plots 140, 326 and 125 in the execution case must be deemed to be for the benefit of the mortgagor on equitable principle and whether the plaintiffs are entitled to be granted a decree for redemption with respect to plots 140 and 326 which they had purchased in the year 1941 and (2) whether the lower Courts were right in appointing a commissioner for taking account from the defendants first party with respect to the produce of the land in dispute.

5. Upon the first question Mr. B. C. De did not impeach the findings of fact reached by the lower court; but learned counsel laid much. stress on the argument that there was no fiduciary relationship between the defendants. first party and Nezamuddin from whom the plaintiffs had purchased the land in dispute. It is. conceded by the learned counsel that as between mortgagor and a mortgagee the principle of equity will apply and any advantage gained by the mortgagee on account of his default would enure to the benefit of the mortgagor. Learned counsel conceded that a similar principle will be applicable as regards the co-sharers who are jointly liable to pay rent for the hold- ing. But it was strenuously argued that the principle ought not to be extended to a case where the parties do not stand in direct relationship of mortgagor or mortgagee, or as co-sharers jointly interested in the property in dispute. In support of his contention counsel placed much reliance upon -- 'Sorabjee v. Dwarkadas 59 Ind. App. 366 (PC) in which it was held by the Judicial Committee that Section 63, T. P. Act, did not entitle a mortgagor to recover on redemption a subordinate tenure in the mortgaged property which the mrotgagee had acquired for his own benefit and without availing himself of his position as mortgagee so as to bring the transaction within Section 90, Trusts Act, 1882. But the material facts of the present case are entirely different and the ratio of this case cannot be applied. On the other hand, the present case directly falls within the ambit of the principle laid down by the Judicial Committee in -- 'Deo-nandan Prashad v, Janki Singh 44 Ind. App. 30 (PC) in which the facts are closely parallel. In that case a minor had taken mortgage of 3 annas share of a property but his agents made intentional default in payment of the revenue for which he was responsible with a view to the property being brought to sale and being purchased on behalf of the mortgagee. It was not shown that the co-sharers of the mortgagor knew of the default or sale. The co-sharers thereupon brought a suit against the minor for a declaration that the auction sale should be set aside as being fraudulently effected. The Subordinate Judge found that there had been no fraud on the part of the minor or his agents and that proper notices had been served and that the sale had been brought about by the negligence of the plaintiffs in not paying the revenue kist. The Subordinate Judge accordingly dismissed the suit. But the High Court allowed the appeal on the ground that there were no laches on the part of the co-sharers and that the minor was in default. The High Court held that the minor was a trustee for the owners of the 3 annas share mortgaged " to him and was bound to reconvey that share to his mortgagors upon payment of a proportionate part of the purchase price. As regards the other co-sharers also the High Court was of opinion that there was a fiduciary relationship and the minor, though not a co-sharer, was a trustee for a co-sharer, and could derive no benefit from himself committing a breach of trust. The judgment of the High Court was affirmed by the Judicial Committee in appeal. The decision of the Judicial Committee was based upon the principle that there was a fiduciary relationship not only between the mortgagor and the mortgagee but also between the mortgagee of a certain share and the owners who held the other shares in the proprietary interest. It is of significance that though there was no personal misconduct or personal fraud to be attributed to the minor who had taken mortgage of the 3 annas share, the Judicial Committee was of opinion that an act of default or neglect was tantamount to a breach of trust and any advantage which the minor obtained on account of his default or neglect should not prejudice the right of the co-owners. The reason is that as between persons who stand in a fiduciary relationship equity demands a high measure of candid deal-ing and good faith as would ensure that the person who stands in such relationship would not be tempted to make a deliberate default with a view to appropriating to himself the common property or any part thereof. It is not necessary that there should be actual fraud or misconduct but the equitable principle can be invoked even if there is default or neglect committed in breach of the terms of the mortgage. At page 33 of the report Sir Lawrence Jenkins states : "In any case their Lordships acquit him of any personal misconduct in relation to the default or sale. He was however, represented by agents, and when the position created by them is regarded as a whole it leads to the conclusion that the Government revenue was intentionally allowed by them to fall into arrear with a view to the property being put up for sale and brought on behalf of the minor. If this be the true view, as their Lordships hold, then however free from personal blame the minor may have been, he cannot profit by his agents' deliberate default committed in breach of the terms of the mortgage. As against his mortgagor, therefore, the mortgagee cannot be allowed to hold for himself the advantage gained by the default for which his agents were responsible. Nor, in their Lordships' opinion, can he be permitted to hold for himself this advantage to the prejudice of the co-owners. For this purpose the mortgagor and mortgagee may be identified; they together represented the 3-annas share, & theirs was the obligation to pay their quota of the revenue. Equally in relation to the co-owners was the default designed with a view to a subsequent sale and to a purchase on the minor's behalf, and the advantage gained by this scheme must, in like manner, be held for the benefit of the co-owners, who are not shown to have been aware of the default or sale, or to have disentitled themselves to this equitable relief". Upon the facts found in the present case it must be held that the purchase made by the defendants first party in 1939 was an advantage gained by the mortgagees in default of the terms of the mortgage and that the equity of redemption with respect to this land is not extinguished by the purchase. It follows that the plaintiffs are entitled to be granted a decree for redemption with respect to 2.20 acres of land described in sch 4 of the plaint. It should be noticed that the plaintiffs have not asked for redemption of plots 95 and 120 which are included in the ijara bond executed in 1923 in favour of Lochan.

6. The next question is whether the lower Courts are right in directing that a commis sioner should be appointed for taking account of the produce of the land from the defen dants first party. It was maintained on behalf of the appellants that no such direction ought to have been given in the decree. The argu ment is based upon Section 171, Bihar Tenancy Act which states : "(1) When any Person having, in a tenure or holding advertised for sale ..... an interest which would be voidable upon the sale, pays into Court the amount requisite to prevent the sale, (a) the amount so paid by him shall be deemed to be a debt bearing interest at twelve per centum per annum and secured by a mortgage of the tenure or holding to him; (b) his mortgage shall take priority of every other charge on the tenure or holding other than a charge for arrear of rent; and (c) he shall be entitled to possession of the tenure or holding as mortgagee of the tenant, and to retain possession of it as such until the debt, with the interest due thereon, has been discharged. (2) Nothing in this section shall affect the other remedy to which any such person would be entitled." It was contended that the person who makes a deposit is entitled to the amount so paid with interest at 12 per cent, per annum and secured by a mortgage of the tenure or holding and in addition he is entitled to possession of the tenure or holding and to enjoy the usufruct thereof until the debt with interest due thereon has been paid. In my opinion there is no justification for this argument. Section 171(1) (a) provides that the amount paid shall be deemed to be a debt bearing interest at 12 per cent, and secured by a mortgage of the tenure or holding to the person who makes deposit. Under Clauses (b) the mortgage shall take priority of every other charge of the tenure or holding other than a charge for arrear of rent and under Clauses (c) the person who makes a deposit shall be entitled to possession of the tenure or holding as mortgagee and to retain possession of it as such until the debt with interest due thereon has been discharged. It is plain that the person who makes deposit is entitled to possession of the tenure or holding as 'mortgagee' of the tenure and to retain possession of it as such until the debt with interest has, been 'discharged'. The word 'discharged' connotes that the debt and interest due may be satisfied by the creditor appropriating the usufruct. . It follows that when the dues has been so realised by appropriating the usufruct the person who makes deposit is no longer entitled to possession. In other words Clauses (c) entitles the person who makes deposit to remain in possession only until the amount which he paid together with interest due thereon has been discharged. It was contended on behalf of the appellants that Section 76(g), T. P. Act, would not apply to the statutory mortgage created by Section 171, Bihar Tenancy Act. But the language used by the legislature in Section 171 clearly indicates that the intention was that the provisions of the Transfer of Property Act relating to the mortgages should apply to statutory mortgage created by the section. Had it been intended that a person who makes deposit should obtain and retain possession of the tenant's holding until the amount of deposit had been repaid it would have been sufficient for the legislature to say so. But Section 171 actually states that the holding shall be security for the amount deposited and the mortgage shall take priority of every other charge of the tenure or holding other than a charge for arrear of rent and also the person making the deposit shall be entitled to possession of the tenure or holding as a mortgagee of the tenure. Upon a proper construction of the section it is clear that Section 76(g), T. P. Act, would be applicable to the present case and the appellants are liable to furnish accounts of the produce of the land in dispute.

7. It was submitted that it would be placing an undue burden upon the person who makes deposit to furnish proper accounts of the produce for possibly a long period of years, that no co-sharer or other person having an interest in the holding would make deposit under Section 171, if such a condition should be imposed. But there is no reason why the person who makes the deposit should be placed in an unduly advantageous position--why he should be permitted not only to enjoy the usufruct of the holding but also to recover the amount paid by him with interest at 12 per cent, per annum secured by a mortgage of the holding to him such a mortgage taking priority of every other charge on it other than a charge for arrear of rent. If the provisions contained in Section 171 were non-existent a person making the deposit would be merely entitled to reimbursement of the amount under Section 69 or 70, Contract Act. In -- 'Kinu Ram v. Mozaffer Hosain 14 Cai 809 (FB) the question arose whether one of the two cosharers in a revenue paying estate who paid the whole revenue in order to save the estate was entitled to a charge upon the share of his cosharer to the extent of the latter's share of the revenue as against a purchaser. It was held by the majority of the Full Bench that there is no general rule of equity that whoever having an interest in an estate makes payment in order to save the estate obtain a charge on the estate and, therefore, in the absence of statutory enactment the co-sharer acquired no charge on the share of his defaulting co-sharer. The position of a mortgagee is different. A mortgagee, if he has to make payments necessary for the preservation of the mortgaged property may add them to the amount covered by his security. There are other special cases such as that of trustees, in which a lien may arise apart from contract. Apart from these special cases, payments made to save sale of a property give rise to no charge. The Calcutta case was followed by a Full Bench of the Allahabad High Court in -- 'Chitor Mal v. Shib Lal 14 All 273 (FB). At 'page 300' Sir John Edge, C. J. states : "Justice, equity, and good conscience are captivating terms; but before a Judge applies what may appear to him at first sight to be in accordance with justice, equity and good conscience, he must be careful to see that his views are based on sound general principles and are not in conflict with the intentions of the legislature or with sound principles recognised by authority." In the present case, it is clear that by enacting Section 171, Bihar Tenancy Act, the legislature granted a special privilege to a person who is in- . terested in preventing the sale of the holding and who makes a deposit. The amount paid by him is deemed to be a debt with interest at 12 per cent, per annum and secured by a mortgage of the holding, such mortgage taking priority of every other charge on the holding other than a charge for arrear of rent. He is also given the option of taking possession of the holding as mortgagee of the tenant and to retain possession of it until the debt with interest due thereon has been discharged. These rights are substantial and there is no warrant for holding that the person who makes deposit should be exempted from the liability to account imposed by Section 76(g), T. P. Act.

8. This opinion is supported by authorities. In -- 'Rajeswar Prasad v. Rajani Nath 35 C W N 678, it was pointed out that when a person makes payment under Section 170, Bengal Tenancy Act, he is under Section 171(1) (c) entitled as a mortgagee to possession of the tenure or holding in respect of which the payment was made and to retain possession of the same until the debt due to him has been discharged. Under Section 170(2), he has also a further remedy to sue for the enforcement of the statutory mortgage after giving up possession of the tenure or holding concerned. When such a person, in availing himself of the second re-medy, brings a suit for the enforcement of his mortgage, filing therewith an account of the realisations made by him during the period of his possession as also further payments towards rent made by him during that period, his suit was in proper form and a preliminary decree lor accounts was correctly made. It was argued in that case that the plaintiffs having elected their remedy by going into possession of the Mahal no suit was maintainable for realisation in respect of payments made towards arrear of rent. The contention was rejected by the High Court who held that the plaintiff was not-bound to go on making payments if the usufruct of the property did not permit such payments being made and the plaintiff had the right to institute the suit after giving up possession of the patni mahal and after furnishing accounts in respect of the realisation made. To a similar effect is the decision in -- 'Bibi Ganshul v. Badri Singh', S. A. 626 of 1948, D/-29-11-1951 (Pat.) by a Division Bench of this Court. In that case the question arose whether the defendants who had taken possession of a holding under Section 171, Bihar Tenancy Act, were bound to render accounts in a suit brought for redemption. It was held by the learned Judges that a preliminary decree for redemption and accounts should be passed in favour of the plaintiffs. In -- 'Munga Lal v. Sagarmal 15 Pat 481 the High Court observed that Section 171, Bihar Tenancy Act only provided that payment of money to save a holding or tenure from sale would create a mortgage by operation of the law in favour of the person who paid it but the rights and liabilities of the mortgagor and the mortgagee will have to be governed by the Transfer of Property Act. It was held upon the facts proved in that case that by operation of Section 60, T, P. Act, the mortgagee having purchased half the holding the mortgage security had been split up and the plaintiff was entitled to redeem on payment of his quota only.

9. Upon the consideration of the authorities it is clear that the appellants are liable to ren- der accounts for the period they were in possession of the holding, i.e., from 2 (20th?)-12-1937 till the date they made over possession to the plaintiffs.

10. An elaborate argument was addressed by Mr. J. C. Sanyal who appeared at a later stage of the case that upon a proper construction of Section 171, Bihar Tenancy Act, it ought to be held that no mortgage is created in favour of the person who makes deposit but only a lien which entitles him to remain in possession of the holding. In support of his contention learned counsel referred to -- 'Upendra Chan-dra v. Tara Prosanna 30 Cal 794; -- 'Rakho-hari 'Chattaraj v. Bipra Das Dey 31 Cal 975 and -- 'Kishan Lal v. Ganga Ram 13 All 28. But these authorities are of no assistance to the appellants for the material facts were different .and the question of construction of Section 171, Bihar Tenancy Act, did not arise. Had the legislature intended that a person making deposit should have only a lien there is no reason why the legislature should not have expressly enacted to that effect. On the contrary, Section 171 states that the amount paid shall be deemed to be a debt bearing interest at 12 per cent, and secured by a 'mortgage' of the holding; that the 'mortgage' shall take priority of every other charge on the tenure or holding, other than a charge for arrear of rent and that the person making the deposit shall be entitled to possession of the holding as 'mortgagee' of the tenure. The actual wording of Section 171 lends no countenance to the argument advanced by Mr. Sanyai. On the other hand, the principle is well established that technical words if used in a statute should be taken in technical sense unless it appears clearly from the context that the words are intended to be applied differently from their legal acceptation, In the present case the word 'mortgage' must be interpreted in technical sense and there is no justification for interpreting it to mean a. 'lien' which connotes a legal relationship of a different character. This branch of the argument of Mr. Sanyai must, therefore, fail.

11. Learned Counsel placed reliance upon -- 'Ramlal Jha v. Thakur Das where Agarwala J. states that a judgment-debtor seeking to regain possession of the holding is entitled to do so only on repayment of the entire amount deposited by the mortgagee and not on payment of a lesser amount. But the question whether mortgagor is entitled to maintain a suit to redeem a statutory mortgage or whether he is entitled to claim account of the produce did not arise in this case and was not dealt with. On the contrary, in -- 'S. A. 2 of 1942, D/- 23-11-1942 (Pat)' the same learned Judge held that a mortgagor or the transferee of a mortgagor's interest was entitled to an account from the mortgagee who has taken possession of the mortgaged property under Section 171(1), Bihar Tenancy Act.

12. In view of these considerations I would affirm the decree of the lower appellate Court and dismiss this appeal with costs. Sarjoo Prosad, J.

13. I agree that the appeal should be dismissed with costs.

14. I had my doubts as to whether under Section 171, Bihar. Tenancy Act, the person, who pays into court the amount requisite to prevent a sale and takes possession of a tenure, or holding as a mortgagee of the tenant, is liable to account for the period of his possession. It seems to me 'prima facie' that all the considerations or equities which arise in the case of a mortgagee in possession cannot be imported to regulate the rights and obligations of a person who gets into possession of the property within the provisions of Section 171(1) (c) of the Tenancy Law. Even under the Transfer of Property Act the provisions of Section 76 of the Act are conditioned by the provisions of Section 77 of the said Act, and it is not in all cases that a mortgagee in possession of the mortgaged property is held liable to account to the mortgagor. Section 171, Bihar Tenancy Act does not provide for a mortgage arising on a contractual basis but for a statutory mortgage by virtue of the payment made by the person interested in. order to avoid the sale. In the case of such a statutory mortgage the rights and obligations of the parties must be determined on the lerms of the section itself which appears to me to be a self-contained section except for Sub-section (2) of that section which preserves the other remedies available to the person who pays the amount to prevent the sale of a tenure or holding. The main object of Section 171 of the Act appears to be to protect the interest of the person whose interest is voidable on the sale as against the defaulting tenant whose default might have resulted in the sale of the tenancy and in the extinguishment of the interest of the person paying the amount to avoid the sale. It does certainly give certain privileges to the person so paying the amount as against the defaulting tenant. If those privileges were also intenued to be conditioned by certain obligations which normally arise between mortgagors and mortgagee, the object of the section itself is likely to be defeated and the privileges would be whittled down to such an extent that such persons may be de terred from adopting the straight course of making a deposit in court in order to avoid the sale and may lead them to resort to other subterfuges of an unhealthy character in order to sell their own interest to the detriment of the defaulting tenant. In that situation I visua lise many anomalies which I would have com prehensively dealt with if the matter were 'res integra'; but it seems to me, as my learned brother has pointed out, that the matter ap pears to be concluded by several decisions including the decisions of this court; and as at present advised, I do not feel compelled to adopt a different course.