Thakur Singh v. Ram Baran Singh & Ors.

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1038- 1040 of 1967. Appeals by certificate under Article 133 of ·the Constitution of India from the judgment and decree dated AuJ?uSt 7, 1962 of the Pain.a High Court in OriJ?inal D~crees Nos. 384/52. 1155 and 2155. I

THAKUR SINGH V. RAM Jl"ARAN (Ray, J.) !017 U. C. Prasad, for the appellant Jagadish Swamp, K. K. Sinha, S. K. Sinha and B. B. Sinha, for responden:ts Nos. 1-4 (in C.A. No. 1038 of 1967), for respondents 1 (a) & 2 (in C.A. No. 1039 of 1967 and for respondents Nos. I, 2, 4 & 5 (in C.A. No. 1040 of 1967). The Judgment of the Court '.Vas delivered by Ray, J. These three appeals are by certificate against the judgment dated 7 August, 1962 d' the High Court at Patna. The High Court allowed in part the appeals filed by the appellant by decreeing in part the suits filed by the aopellant for redemption of mortgages. The High Court dismissed the appellant's prayer for mesnc profits. The appellant filed three suits for redemption. Title Suit No. 54 of 1950 filed by the appellant was with respect to I jara bond da1ed 21 April, 1920 in favour of Ram Baran Singh for Rs. 2,300/-. Title Suit No. 55 of 1950 was filed by the [ppellant with respect to another ljara bond dated 21 April, 1920 in favour of Inder Singh for Rs. 1293-12.Q. The third Title Suit No, 56 of 1950 was filed by the appellant with respect to the 1hird ljara bond dated 21 April, 1920 in favour of Raj Kum:ar Mahto for Rs. 1,150/-.

The bond was subsequently assigned to one Sheo Sharan Singh whose sons were defendants in that suit. These bonds were executed by Maik Nizammuddin. These three bonds were mortgage bonds in respect of certain Mill\iyat share in vilLa!!e Keoran Mauzume Makhdumpur in the District of Patna. The appellant was the purchaser of the Milkiyat share of Nizammuddin from his heirs by a deed dated 22 May, 1946. The appellant alleged as follows. There are baksht lands within the said Milkiyat share covered by the Ijara bonds. These hakasht lands were the subject matter of the mortgage. After ·he pur, chase the appellant •endered the ljara money to the -e:;pondents who were ijaradars or mortgagees. The respondmts refused to accept the money. The appellant thereupor. de;>~sited the mortoage money. The appellant served notice c{ the deposit on the ~espondents. Tne respondents did not withdraw the iiara money; Thev did not deliver possession of the Milkiyat share and the bakasht lands to the appellant.

The appellant therefore filed .suits for redemption and for possession. The appellant also claimed mesne profits. The respondents in the written st:atements denied that there was any bakasht land. It was also denied that there was any mqr~age of bakasht land. It was alleged th:at the lands were raiyati lands in possession of several tenants and there.fore :those lands could not be redeemed. The further defence was thl)t the {1973] l S.C.R. 1ja1'a bonds were really sale deeds and therefore the appellant had no right of redemption in respect of the mil]fiyat interest. The respondents denied that the appellant tendered the mortgage money. The trial Court held that the appellant was entitled to a decree for redemption but not for mesne profit. The reason given was lJ that the aonelfant did not eposit in court under Section 83 of the Transfer (•f Property Act the money due on mortgage.

The mortgageeshad from time to time paid the Government revenue and cess in respect of the mortgage property. The Government re- \'enue and cess should have been paid by the mortgagor. The amounts representing the Government revenue and cess should have been '.added up in the mortgage money. The deposits in court did not cover those amounts. The appellant preferred appeals to the High Court. The High Court upheld the finding of the trial Court that certain lands were bakasht lands. The High Court set aside the finding of the trial Court as to other fand3 which were found by the trial Court not to be bakasht lands. The High Court upheld the finding_ and conclusion of ·the trial Court that there was no valid deposit in court of money due on mortgage. The appellant was therefore not entitled to mesne profits. The High Court found that the amount of revenue and cess w~s never less than the amount of haq-ajri (meaning thereby 'annual reserve rent') payal:le to the mortgagor.

The result was that the amount cf revenue and cess paid by the mortgagees w'as always higher than the haq-ajri and therefore there was no case of accounting. Counsel for the appellant contended that the appellant was entitled to mesne profits from the dates of deposit of mortgage money in court under section 83 of the Transfer of Property Act. The amounts were deposited in court of First Munsif, Patna on 26 l\fay, 1947. Notice under section 83 of the Transfer of Property Act was served on the respondents on 30 May, 194 7 in two cases and on 3 June, 1947 in the third case. The suits were filed for redemption of mortgage and mesne profits in the month of June, 1950. The relevant terms of the ijara bond (mortgage bond) in fovour of Ram Baran Singh were these :

"It is desired that the said Mustajir should enter into possession and occupation of the ijara property. him- 5elf cultivate the land, appropriate the produce thereof in lieu of interest on the peshgi money, I, the executant, or my heirs and reprc,entatives, neither have nor I ll THAKUR SINGH v. RAM BARAN (Ray, J.) shall have any claim for excess produce and mesne profits etc. against the said Mustajir or his heirs and _representatives, except to get a sum of. Rs. 12/- (rupees twelve) in king's coins, as annual reserve rent till this deed remain intact. Expenses over dispute regarding the milkiyat property and boundary limit and payment of Government revenue and road cess and Public works cess etc. are entirely the concern of me, the cxecutant The said Mustajir neither has nor shall have any connection and concern therewith". Th~ terms of the other two ijara deeds were identical.

The only difference was that in the case of the ijara '*1nd in fawiur of Inder Singh the annual reserve rent (haq-a_jri) was Rs. 6-12-0 and in •he case of Raj Kumar Mahto the annual reserve rent (haq-ajri) .,,as Rs. 6/-. Broadly stated, these terms indicate three features. First, the mortgagee shall have possession and occupation of the mortgaged property and appropriate the produce thereof in lieu of interest ,,n the mortgage money and the mortgagor had no claim to any excess produce or mesne profits against the mortgage. Secondly. the mortgagee was to pay to the mortgagor the amounts mentioned in each ijara bond the annual reserve rent or haq-ajri. Thirdly, the mortgagor was liable for payment of the Government revenue or cess. The High Court found that the mortgagees paid the revenue md cess out of haq-ajri. In Title Suit No. 54 of 1950 the High Court held that the total amount of revenue and cess came to Rs .. J 5-9-3. The haq-ajri in that suit was Rs. 12/-.

It therefore followed that every year the mortgagee paid Rs. 3-9-0 in excess 0f the amount haq-ajri. The mortgagor was liable to the morl- ~agee for the excess payment. Similarly, in Title Suit No. 55 of 1950 the mortgagee paid revenue and cess amounting to R5. 9-13-3. The haq-ajri under the ijara bond in that suit was Rs. 6-12-0. The result was that every year the mortgagee paid Rs. 3-1-3 in excess. The mortgagor was liable to the mortgagee to pay that excess amount. Again, in Title Suit No. 56 of 1950 the High Court found that the mortgagee paid every year revenue and cess amounting to Rs. 7-12-0. The haq-ajri there was Rs. 6/. The mortgagee therefore paid annually Rs. 1-12-0 in excess of l1aq-ajiri. The mortgagor was liable to pay the excess amount io the mortgagee. In the present appeals, the mortgagor had undertaken the liability to pay the revenue and cess.. The mortgagor failed to pay the same. The mortgagees paid the revenue and cess on be .. half of the mortgagor.

The mortgagees were entitled to the excess payment of the amount or revenue and cess, because the mortgagor was liable to pay the same. The mortgage bonds in the present case provided that as long .as the mortgagee was in possession of the property the receipts from the morgaged property shall be taken in lieu of interst on the principal money. That amounts to a stipulation that the receipts from the mortgaged property will be taken in lieu of the. interest on the principal money. That is section 77 of the Transfer of Property Act. The provisions as to accounts contained in section 76(g) of the Transfer of Property Act are excluded in cases where section 77 of the Transfer of Property Act applies. Section 77 of the Transfer of Property Act applies to the present appeals. Further, the mortgages had to pay to the mortgagor a fixed amount, namely, the haq-ajri. There was nothing to account on the part of the mcrtgatees in relation to payment of haq-ajri.

On the contrary, the mortgagor was liable for the payment of Government revenue and cess. Under section 76 ( c) of the Transfer of Property Act the mortgagee in possession, in the ab~ence of a contract to the contrary. must pay ·the Government revenue and other charges of a public nature and arrears of rent in default of payment of which the property may be summarily sold. In the present case, the mortgagor was liable for payment of both revenue and cess. Therefore, the mortgagees were entitled to add to the mortgage money the amount for which the mortgagor under the terms of the mortgage was liable. Section 4 of the Cess Act, 1880 defines 'annual value of land' to mean the total rent which is payable or, if no rent is actually payable, would, on a reasonable assessment, be payaMe, during the year by all the cultivating raiyats of such land in the actual use and occupation thereof.

Section 5 of the Cess Act, 1880 states that all immovable property to which the Act applies shaH be liable to the payment of a local cess. Section 6 of the. Cess Act, 1880 provides as .to how tl.e cess is to be assessed. Section 38 of the Cess Ac~. 1880 provides as to how rate of local cess o.n the annual value of land is '(o be fixed. Section 98 of the Cess Act, 1880 enacts that the amount which may become due under the provisions of the Cess Act in respect of arrears of cess shall be deemed to be a public demand. Section 99 provides that the Collector may recover dues out of rent and the Collector's claim to have priority. These provisions show that cess is linked with rent. Ci:ss is payable on annual·- value of land. Annual value is linked With rent. Cess is deemed to be a puplic demand. The mortgagee were entitled to add the amounts paid by them towards revenue and cess on the mortgage money. fl• l ' .•.. I THAKUR SINGH v. RAM BARAN (Ray,/,)

IP2t The High Court was correct in refusing the mesne profits. On behalf of the respondents it was mentioned in their statement of case that the appellant aft~r having deposited the further amount after the decree of the High Court hac:I taken possession of the land. This statement was not challenged and denied by the appellant. This indicates that the appeals have now become academic. The appeals therefore fail and M.& dismissed. The respondents will be entitled to one set ol costs in this Court. V.P.S. Appeals dismissed.