Law: Transfer of Property Act (IV of 1882)

Section: 76

  Transfer of Property Act (IV of 1882), S. 76, cl. (c) Mortgage in possession of mortgaged property Bound to pay the usual rent and protect property from sale-Mortgaged property-If sold at a certificate sale for default in payment of such rent by him and purchased by him at such sale-Still open to redemption by mortgagor.   Uttam Chandra Daw v. Rajkrishna Dalal I L R 57 Cal. 377 (F B) distinguished.   N. C. Nandi for Appellants.   Rajendra Kumar Banik for Respondents.  JUDGMENT   BADIUZZAMAN, J.-----This appeal arises out of Title Suit No. 128 of 1948 of the Court of the Munsif, First Court. Dacca. The suit was for redemption of a mortgage by conditional sale executed by the plaintiffs in favour of the defendants on the 28th June 1935, for a sum of Rs. 125 on the allegation that the mortgage had been satisfied as a result of enjoyment of the usufruct of the mortgage property by the mortgages.   The defendants admitted having possessed the property in question under a mortgage by conditional sale, but at the same time resisted the suit contending, inter alia, that the mortgage had been redeemed in Poush, 1342 B.S., on payment of mortgage dues both in cash and in kind, and that soon after the redemption the original document was returned to the plaintiffs through one Peari Matbar, after endorsing full satisfaction on the reverse thereof, and along with the return of the deed, possession of the mortgaged property also was delivered back to the plaintiffs, and subsequently defendant No. 3 as Karta of the joint family purchased the mortgaged property at. a certificate sale on the 11th June 1938, and took delivery of possession on the 25th March 1940, and since then the defendants were enjoying possession on payment of rents to the landlords as tenants and not as mortgages.   It was further contended that the mortgage having been satisfied a suit f9r redemption could not be maintained.   The learned Munsif on a careful survey and detailed analysis of the materials furnished by the parties negatived the plea of satisfaction and further found as follows:-   "Regarding defendant's contention that they are in…