Tokhan Pandey vs Sivakanta Prosad Singh

Das, J.—This appeal arises out of a suit instituted by the respondent for recovery of possession of certain lands or in the alternative for redemption. It appears that defendants Nos. 1 and 6, who are the tenants, gave the lands in dispute, in usufructuary mortgage to defendant No. 7 with a condition that defendant No, 7 should pay Rs. 68 as rent to the landlord, The interest of defendant No. 7 is now vested in defendant No, 8. The plaintiffs themselves are the landlords and purchased portions of the lands which were mortgaged to defendant No. 7. His suit for possession is on the ground that the usufructuary mortgage was a collusive document not binding on him and in the alternative for redemption. The question whether the document was a collusive one or not has not been considered in the Court below, possibly for the reason that the Court of first instance had found that the document was a genuine one. Therefore, we cannot be embarrassed by that question at all in this appeal.

Now the only question is whether the plaintiffs are entitled to redemption. Clearly they are entitled to redemption on payment to the mortgagee of what is now due by the mortgagors. The question, however, arises whether the plaintiffs are entitled to deduct Rs. 6-8-0 per year which under the terms of the document the defendant No. 7 should have paid to the plaintiffs. The case of defendant No. 8 was that ''the sum was all along paid to the landlord. The landlord, however, denied that. The Court below has found that it has not been paid and has directed that this sum should be deducted in the accounts which have to be taken of the sum due by the mortgagor to the mortgagee. It seems to me that the case of Fakir Muhammad Khan v. Ali Sher Khan 10 Ind. Cas. 113 is directly in point. In that case precisely the same question was raised and it was held that the mortgagee was entitled to the benefit of such non-payment of rent to the Zemindar and that the mortgagor was not entitled to redeem the mortgage on payment of the principal sum after deducting the rent not so paid. It rests on the principle that that is a separate matter altogether in respect of which the landlord had a right of action against the mortgagee in possession or if the landlord had brought rent suits against the original tenants, the tenants could have recovered the sums from the mortgagee in possession, but there cannot be an equitable set-off in a suit of this nature. I would accordingly set aside the judgment and decree of the Court below and allow the appeal and direct that the plaintiffs will be entitled to redeem the properties on payment of the sum of Rs. 439 to defendant No. 8. The plaintiffs will have three months to redeem.