Vs.
EmailAppeal:
Petitioner:
Respondent:
Apeal:
Judges: B.P. JEEVAN REDDY & K.S. PARIPOORNAN, JJ.
Date of Judgment: Mar 11, 1997
Head Note:
TRUSTS
Indian Trust Act, 1882
Section 90 Advantage gained by mortgagee in derogation of the rights of mortgagor – Advantage to be held on behalf mortgagor – Held on facts that mortgage obtained a regrant in his favour by availing himself of his position as a mortgagee and so attracted Section 90 of Indian Trusts Act and so mortgagor the appellant has right to redeem the mortgagee within six months – Right to redeem will subsist notwithstanding forfeiting rights of mortgagor by default of the mortgagee – Appeal allowed.
Indian Trust Act, 1882
Section 90 Advantage gained by mortgagee in derogation of the rights of mortgagor – Advantage to be held on behalf mortgagor – Held on facts that mortgage obtained a regrant in his favour by availing himself of his position as a mortgagee and so attracted Section 90 of Indian Trusts Act and so mortgagor the appellant has right to redeem the mortgagee within six months – Right to redeem will subsist notwithstanding forfeiting rights of mortgagor by default of the mortgagee – Appeal allowed.
Held:
So, on facts, it is clear that the first respondent obtained regrant in his favour or obtained an advantage in his favour, by availing himself of his position as a mortgagee. In law, the advantage obtained by the first respondent, the qualified owner, must be held to be for the benefit of the persons interested — the mortgagor- appellant. We are of the view that in the totality of the facts and circumstances, the provisions of Section 90 of the Indian Trust Act are attracted. The first respondent-mortgagee gained an advantage by availing himself of his position as a possessory mortgagee and obtained the regrant. This he did by committing a wrong. He committed a default in not paying the occupancy price within the time limited by law for and on behalf of the mortgagor. The regrant was obtained in his name by posing himself as a tenant, which was possible only because he was in possession of the land (as a possessory mortgagee). The advantage so gained by him in derogation of the right of the mortgagor should attract the penal consequences of Section 90 of the Indian Trust Act. We hold that the default committed by a possessory mortgagee, in the performance of a statutory obligation or a contractual obligation, which entails a sale or forfeiture of right in the property to the mortgagor, will attract the provisions of Section 90 of the Indian Trust Act. In such cases any benefit obtained by the qualified owner, the mortgagee, will enure to or for the benefit of the mortgagor. The right to redeem will subsist notwithstanding any sale or forfeiture of the right of the mortgagor. We are of the view that the law on this point has been laid down with admirable clarity by this Court in Mritunjoy Pani and anr. v. Narmanda Bala Sasmal and anr. (1962 (1) SCR 290) and by K.K. Mathew,J. (as his lordship then was) in Nabia Yathu Ummal v. Muhammed Mytheen & ors. (1963 KLJ 1177). The said decisions have our respectful concurrence. (Para 7)
JUDGEMENT:
