JUDGMENT
Medini Prasad Singh, J.
1. This second appeal by the defendants arises out of a suit for redemption of a usufructuary mortgage bond (Ext. 1 dated 4th May 1930, for Rs. 500/- in respect of 2 bighas 3 kathas 6 dhurs of land. The two Courts below decreed the suit. The plaintiffs had earlier executed two Zerpesgi deeds in the year 1923 (Exts. 1/a and 1/b) in favour of Elkhart and Shivraj respectively; one was for 13 kathas and another for 14 kathas 16 dhurs. Both these Zerpesgi deeds had been transferred to one Brijnandan Pandey the original mortgagees Lekhraj and Shivraj. They were redeemed by the defendant appellants with whom the mortgagor namely, the plaintiffs had left the necessary amount for redemption and they came in possession of these lands.
2. It appears that under the aforesaid two Zerpesgi deeds the mortgagees were liable to pay a portion of the rent of the holding. No rent was paid by them. The result was that the landlord brought a rent suit (R. No. 477 of 1930) for arrears of rent from 1334 fasli to 1337 fasli (1927 to 1930) obtained a decree and levied execution but the mortgagee of Ext. 1 namely, the appellant paid the decretal amount of Rs. 82/12 annas. The mortgagee filed a suit for this amount against the mortgagors and also against the previous mortgagees. The mortgaged property was put to sale and the mortgagees, namely, the appellants themselves purchased the property at the auction sale on 7th April 1941, and took delivery of possession on 17th January 1943, and since then they are claiming the property as their own.
3. It is contended on behalf of the appellants that the Courts below have committed an error of law in applying Section 90 of the Indian Trusts Act, 1882 and in decreeing the suit for redemption. In my opinion, the contention is correct. Section 90 runs as under:
90. Advantage gained by qualified owner; 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.
On a perusal of the above it is clear that in order to get the benefit of the section it must be shown that the mortgagee by availing himself of his position as such has gained certain advantage in derogation to the rights of other persons, namely, the mortgagors. The expression “by availing himself of his position as such” obviously signifies that in discharge of his duty he committed some act in breach of the terms of the mortgage. In the present case as I will presently show there was no default on the part of the mortgagee. As a matter of fact he paid the decretal dues in order to save the mortgaged property from sale and, in fact, saved it from sale. It is not a case in which there was default on his part in payment of rent. He had to bring the suit for money because neither the mortgagor nor the mortgagee paid it to him. Counsel appearing for the plaintiff respondents heavily relied on the terms of the mortgage bond (Ext. 1). Ext. 1 discloses that the mortgagor was to pay the rental of the Zerpesgi land and if the mortgagor failed to pay the rent and the mortgagee paid it to protect the Zerpesgi land then in such a case he will get the amount as rent along with 11/2 per cent per month as interest at the time of redemption. In my opinion, that rights of the mortgagee to treat his money as rent was under Ext. 1 under which only the mortgagor was liable to pay the rent. It had nothing to do with the earlier dues accruing as rent in respect of the lands covered by the earlier two Zerpesgi deeds (Exts.1/a and 1/b). The lower appellate Court has paid; “I see that the mortgagee was under the obligation to pay a major portion of the arrears of rent for which the land lord had brought the rent suit.” That is correct but it was the obligation of the earlier mortgagee and not of the present mortgagee. Thus the contributory default was on the part of the earlier mortgagee and not on the part of the present mortgagee. It may be noted that under the terms of the present mortgage (Ext. 1) the mortgagee was entitled to get the 11/2 per cent per month interest only in respect of the amount of rent which the mortgagor was liable to pay but he did not pay and the mortgagee had to pay the same. There was nothing of this kind in the present case. The amount in question was related to the earlier Zerpesgi deeds (Ext. 1/a and 1/b) and had nothing to do with the present mortgagee bond (Ext. 1). The lower appellate Court has made confusion in stating that the mortgagee was entitled to get that amount also as rent along with 11/2 per cent per month as interest. It has treated the default of the earlier Zerpesgidars as the default of the present mortgagee and in doing so it has obviously committed an error. The payment of Rs. 82/12 annas by him as independent of his own mortgagee (Ext). Under Section 72 of the Transfer of Property Act it was his option to add such money to the principal money. I think that he was also competent to bring a separate money suit for this amount. There is no question of fraud or collusion between him and any other person. The mortgagor was a party to the rent suit and he was bound by the decree. It is to be noticed that in the plaint he did not even make any prayer to set aside the money decree or money sale. The plaintiff is silent about it. He did not even mention about the decree or sale. In Tukaram Bangrao Patil v. Subhedar Nanaji Patil and Ors. A.I.R. 1936 Bom. 1977. it was held that if the mortgagor does not get the sale set aside, he cannot redeem and that his right to redeem is barred. See also an unreported case Ram Khelawan Singh v. Gopal Singh S.A. No. 34 of 1951 decided on 12th November 1957., by Ramswamy C.J. and R.K. Prasad. J. and the cases Jadubans Sahai v. Bahuria Phulpati Kuer ; Kewal v. Bikram and sar Nonia v. Kariman Pandey , in which the same principles were enunciated. In Sachi-danand Prasad v. Babu Sheo Prasad Singh , it was held by the Suprem Court that where the mortgagee is not in default or that his default was so small that it could not in any sense be a contributory cause of the sale of the property, the purchase will not enure for the benefit of the mortgagors. Mr. Gupteshwar Prasad relied on Bishunath Tewari v. Most. Mirchi , but the fact found in that case was that the mortgagee defendant had practised fraud in obtaining the decree and in purchasing the equity of redemption; in execution of the fraudulent decree. It was in those circumstances that the mortgagee was held to have gained an advantage for the benefit of the mortgagor as contemplated by Section 90 of the Indian Trusts Act. He next relied on Smt. Basmati Devi v. Chamru Sao , In that case both the mortgagor and the mortgagees were liable to pay rent and both had made default in payment of rent. On the facts it was clear that by his default the mortgagee contributed to the position that a suit had to be brought for arrears of rent and ultimately to the position that the property was put to sale in execution of the decree obtained in the suit. The contribution of bringing about of the sale was a direct result of his position as a mortgagee. When, therefore, he himself purchased the property at auction sale, he clearly gained an advantage by availing himself of his position as a mortgagee and hence Section 90 of the Indian Trusts Act was applicable to the case and the mortgagor was held entitled to redeem the mortgaged property. The same principles were followed in Mst. Sudnani Kuer v. Ishwar Singh . The principles underlying in all these decisions is than if the land is sold for mortgagee’s default of payment and is purchased by the mortgagee himself it is only then that it is still open to redemption mortgagor. This principle will not apply when the mortgagee is not in default. These cases, thus, are of no help to the respondent. As already stated there was no default on the part of the mortgagee in the instant case. I am therefore, of the opinion that the equity of redemption was extinguished and the mortgagor is not entitled to redeem.
4. It was next contended by Mr. Gupteshwar Prasad appearing for the respondent that under Section 76 (c) of the Transfer of Property Act the mortgagee, when he was in possession was bound to pay the arrears of rent in default of payment of which the property may be summarily sold. The argument is not sound. In the first place it is doubtful if Clause (c) of Section 76 can be invoked in this case because it cannot be said that the holding as going to be sold summarily. Any way the mortgagee in the present case did pay the arrears of rent for which a rent decree was passed in order to save the security. It was for that amount that he brought the money suit. The point, thus, has no force.
5. In the result the appeal is allowed, the judgment and decrees of both the Courts below are set aside and the suit is dismissed. No costs.