1. The second mortgagee is the plaintiff (appellant); and he seeks to redeem the 1st mortgagee, the 2nd defendant. The 2ml defendant, has succeeded in the lower appellate Court on the following conclusions:
(a) that 60 and odd rupees of the principal sum of Rs. 200 (the 1st mortgage amount) was still due to the 2nd defendant on date of suit; and
(b) that under the terms of the first mortgage, the 2nd defendant was entitled to hold possession of the lands till that 60 and odd rupees was also wiped out by the usufruct.
2. The contention of the plaintiff in second appeal is
(a) that as the 60 and odd rupees represent irrigation cesses 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, the 2nd defendant 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 and odd is also discharged out of the usufruct;
(b) that even if the irrigation and other cesses are treated as due upon the mortgaged land (No. 183) also, Section 42 of Act. II of 1864 under which sales held for arrears of land revenue are free of prior incumbrances does not apply to sales held for recovery of irrigation cesses, etc., and hence the mortgagee was not bound to pay them under Section 72(b) of the Transfer of Property Act (which requires a mortgagee to spend money for the preservation of the mortgaged property from forfeiture of sale and empowers him to add that sum to the principal money, and
(c) that even if contention (b) is wrong, the 2nd mortgagee is entitled to redeem the first mortgagee on payment of the said sum of Rs. 60 and 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.
3. As regards the first contention, the case of The Secretary of State for India in Council v. Pisipathi Sanharayya (1910) I.L.R. 34 M.493 : S.C. 20 M.L.J. 798 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 the liability for the entire sum mentioned in the pattah charged upon every land is contained in the revenue pattah and that, “we must construe Section 2 as declaring all the land of a landholder to be security for all the land revenue payable by him”. It follows that the Government revenue due upon other lands contained in the 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 cesses free from prior incumbrances are 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 Exhibit I 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 II of 1864, Section 42, does, apply to sales for the recovery of those cesses. Mr. B. Narasimha Rao, counsel for the appellant, ingeniously argued that as Section 2 of Madras Act, VII 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 Abkan and Income Tax Acts have been construed (See Ramachandra v. Pitchai Kanni (1884) I.L.R. 7. M. 434 ) to mean that only the procedure as to the attachment and bringing to sale of the defaulter’s property mentioned in Act II of 1864 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 incumbran-ces; that therefore the sale held for the recovery of arrears or irrigation cesses could not have the benefit of Section 42 of Act II of 1864. We think, however, that this argument ignores, the distinction between irrigation cesses and the sums due from abkari and income-tax defaulters. Under Sections 1 and 2 of Act II of 1866, irrigation cesses have been made part of the public revenue due on the land itself and the provisions of Act II of 1864 apply therefore to the recovery of irrigation cesses; and the Government need not have recourse to Section 2 of Act VII of 1865 at all to claim the powers of attachment and sale, etc., given under Act II of 1864 for the recovery of arrears of public revenue charged upon the land. Section 2 of Act VII of 1865 must, in our opinion, be treated as superfluous and not as restricting modifying or repealing the provisions of Section 42 of Act II 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 Section 42 of Act II of 1864 did not apply to sales held for the recovery of arrears of irrigation cesses though it is now almost 50 years since the Irrigation Cess Act was passed. On the other hand, there is a case Veeranan v. Karupayya Pillai (1911) 24 M.L.J. 511 in which Benson and Sundra Aiyar JJ directly decided that Section 42 of the Revenue Recovery Act did apply to sales for lecovery of irrigation cesses.
6. Coming to the last contention, it has been recently held by the Privy Council in Mussammat Bakhtawar Begam v. Mussammat Hussaini Khanam (1914) 26 M.L.J. 474 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 Exhibit I we are satisfied 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.