SHANKAR SAKHARAM KENJALE (DIED) THROUGH HIS LEGAL HEIRSversusNARAYAN KRISHNA GADE AND ANOTHER

                        [2020] 4 S.C.R. 223                              223


           SHANKAR SAKHARAM KENJALE (DIED)                               A
                  THROUGH HIS LEGAL HEIRS
                                  v.
         NARAYAN KRISHNA GADE AND ANOTHER
                   (Civil Appeal No. 4594 of 2010)                       B
                          APRIL 17, 2020
              [MOHAN M. SHANTANAGOUDAR
                AND R. SUBHASH REDDY, JJ.]
       Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950         C
s.3(3), proviso – Whether the permanent Mirashi tenant -
mortgagor’s (respondents) right of redemption ceased to exist by
virtue of resumption of the suit land under the Abolition Act and its
subsequent re-grant in favour of the mortgagee (appellants) – Land
in question was Paragana Watan property/Inam land governed by
Bombay Hereditary Offices Act, 1874 – Watandar of suit land              D
inducted permanent Mirashi tenant who executed a mortgage deed
in favour of appellants – Bombay Paragana and Kulkarni Watans
(Abolition) Act, 1950 came into force with effect from 25.1.1951
with a view to abolish Paragana and Kulkarni watans – Original
watandar and Marashi tenant did not seek re-grant of suit land –         E
Mortgagee relying on Government Resolution paid the requisite
occupancy price and obtained re-grant of suit land in his favour in
1960 – Suit for redemption of mortgage filed by respondents –
Maintainability of – Held: It is well-settled that the right of
redemption under a mortgage deed can come to an end or be
extinguished only by a process known to law, i.e., either by way of      F
a contract between the parties to such effect, by a merger, or by a
statutory provision that debars the mortgagor from redeeming the
mortgage – Failure on the part of the mortgagor to pay the
occupancy price and seek re-grant is not fatal to his rights as a
Mirashi tenant as the tenancy in his favour continued to subsist         G
despite the introduction of the Abolition Act – Consequently, the
mortgage executed by him also survived the resumption of the suit
land under the Abolition Act, and it cannot be said that the
relationship of mortgagor-mortgagee ceased to exist by virtue of
such Act – As per s.90 of the Indian Trusts Act, 1882, if a mortgagee,
                                                                         H
                                 223
224            SUPREME COURT REPORTS                         [2020] 4 S.C.R.


A     by availing himself of his position as a mortgagee, gains an
      advantage which would be in derogation of the right of the
      mortgagor, he must hold such advantage for the benefit of the
      mortgagor – In the instant case, the conditions stipulated under
      s.90 of the Indian Trusts Act were satisfied – The fact that the lessor/
      Mirashi tenant did not claim re-grant is not relevant inasmuch the
B
      right of redemption of a mortgagor is not extinguished by virtue of
      re-grant in favour of the original defendant (mortgagee) inasmuch
      as the re- grant was obtained and the property was held by the
      original defendant for the benefit of the mortgagors – Therefore,
      the advantage derived by the appellants (successors of mortgagee)
C     by way of the re-grant must be surrendered to the benefit of the
      respondents (Mirashi tenant-mortgagor) subject to payment of
      expenses incurred by them in securing the re- grant – High Court
      was justified in decreeing suit for redemption – Bombay Hereditary
      Offices Act, 1874 – Indian Trusts Act, 1882 – s.90.
D           Dismissing the appeal, the Court
             HELD: 1. Admittedly, lease was subsisting as on
      25.01.1951, i.e., the day on which the Abolition Act came into
      force. The proviso to Section 3(3) of the Abolition Act envisages
      that the resumption of watan land to the Government under the
E     Abolition Act does not affect the rights of an alienee of the
      watandar or his representative of such land under the Watan Act
      or that of any person claiming through or under him. Further, in
      respect of watan land that has been lawfully leased and wherein
      the lease is subsisting on the day appointed for the coming into
      force of the Abolition Act, Section 8 of the Abolition Act accords
F     primacy to the Bombay Tenancy and Agricultural Lands Act, 1948
      in governing the rights and liabilities of the holder of such land
      and his tenant(s). In the instant case, the rights of a lawful
      permanent Mirashi tenant would survive resumption of the suit
      land to the Government by virtue of the proviso to Section 3(3)
      as well as Section 8 of the Abolition Act. This is because the
G
      tenancy created in favour of the Mirashi tenant subsisted as on
      the day on which the Abolition Act came into force, thereby
      implying that his tenancy rights were protected and continued to
      be governed by the Bombay Tenancy Act despite the introduction
      of the Abolition Act. This is well-aligned with the general primacy
H     accorded to tenancy laws over other legislations, as is also
      reflected in Section 8 of the Abolition Act. Thus, the rights of
      SHANKAR SAKHARAM KENJALE (D) THR. HIS LRs. v.                     225
                NARAYAN KRISHNA GADE

permanent tenants over watan lands were intended to subsist             A
even after the coming into force of the Abolition Act. [Paras 7-
9][230-D; 232-B-E]
      2. Section 4 indicates that with the coming into force of the
Abolition Act, watans were abolished and all watan lands vested
absolutely with the Government, subject to Section 4. Under             B
Section 4(1), ‘holders’ of the watans were allowed to pay a certain
occupancy price within five years from the date of coming into
force of the Act and obtain a re-grant of the land. However,
according to the second proviso to Section 4(1) of the Abolition
Act, if the holder failed to pay such occupancy price within the
five-year period, he would be deemed to be in unauthorised              C
occupation of the land and would be liable to be summarily ejected
in accordance with the Bombay Land Revenue Code, 1879. The
watandar in the instant case did not exercise her right to seek
re-grant of the land under Section 4(1) of the Abolition Act. It
seems, the State Government passed orders dated May 3, 1957             D
and November 23, 1960 to grant the lands in favour of persons
who were in actual possession. By virtue of the said orders,
wherever the holder or watandar had failed to pay the occupancy
price as required by Section 4(1) of the Act before the prescribed
period, the lands in question be granted in favour of permanent
Mirashi tenants who were in actual possession of lands. But the         E
Mirashi tenant in this matter did not apply for re-grant pursuant
to the said orders. On the other hand, the mortgagee applied for
re-grant, though he was not a permanent Mirashi tenant. The
failure on the part of the mortgagor to pay the occupancy price
and seek a re-grant is not fatal to his rights as a Mirashi tenant      F
as the tenancy in his favour continued to subsist despite the
introduction of the Abolition Act. Consequently, the mortgage
executed by him also survived resumption of the suit land under
the Abolition Act. [Paras 10, 11 and 13][233-G-H; 234-A-D, H;
235-A]
                                                                        G
       3. A mortgagee who has entered into possession of the
mortgaged property will have to give up such possession when a
suit for redemption is filed, unless he is able to establish that the
right of redemption has come to an end as per law. This emanates
from the legal principle applicable to all mortgages - “Once a
mortgage, always a mortgage”. In the instant case, none of the          H
conditions in which the right of redemption comes to an end exist
226           SUPREME COURT REPORTS                     [2020] 4 S.C.R.


A     with respect to mortgage deed dated 14.05.1947. As regards the
      impact of the re-grant on such right of redemption, such re-grant
      in favour of the mortgagee could not have been made but for the
      fact that he was in actual possession of the property by virtue of
      his position as a possessory mortgagee. The re-grant to the
      Appellants’ predecessor based on actual possession as mortgagee
B
      cannot be divorced from the existence of the underlying
      mortgagor-mortgagee relationship between the parties. A bare
      reading of Section 90 of the Indian Trusts Act, 1882 indicates
      that if a mortgagee, by availing himself of his position as a
      mortgagee, gains an advantage which would be in derogation of
C     the right of the mortgagor, he must hold such advantage for the
      benefit of the mortgagor. In the instant case, the conditions
      stipulated under Section 90 of the Indian Trusts Act, 1882 are
      satisfied. Section 90 of the Indian Trusts Act, 1882 casts a clear
      obligation on the mortgagee to hold any right acquired by him in
      the mortgaged property for the benefit of the mortgagor, as he is
D     seen to be acting in a fiduciary capacity in respect of such
      transactions. Therefore, the advantage derived by the Appellants
      (mortgagee) by way of the re-grant must be surrendered to the
      benefit of the Respondents (Mirashi tenant-mortgagor), subject
      to the payment of the expenses incurred by them in securing the
E     re-grant. This is because the Mirashi tenant-mortgagors’ right
      to redeem the mortgage was not extinguished but was protected
      by virtue of the Abolition Act as well as under the provisions of
      the Bombay Tenancy and Agricultural Lands Act, 1948; in other
      words, the tenancy in his favour continued to subsist. [Paras 14-
      17][235-C-F; 236-B-C, F-G]
F
           Jayasingh Dnyanu Mhoprekar and Another v. Krishna
           Babaji Patil and Another (1985) 4 SCC 162 : [1985] 2
           Suppl. SCR 308 – relied on.
           Collector of South Satara and Another v. Laxman
           Mahadev Deshpande and Others [1964] 2 SCR 48;
G
           Malikarjunappa Basavalingappa Mamle Desai v.
           Siddalingappa & Others (1973) 3 SCC 180 –
           distinguished.


H
       SHANKAR SAKHARAM KENJALE (D) THR. HIS LRs. v.                         227
                 NARAYAN KRISHNA GADE

      Namdev Shripati Nale v. Bapu Ganapati Jagtap and                       A
      Another (1997) 5 SCC 185 : [1997] 2 SCR 980 –
      referred to.
                        Case Law Reference
[1985] 2 Suppl. SCR 308         relied on                    Para 2.7
                                                                             B
[1997] 2 SCR 980                referred to                  Para 2.7
[1964] 2 SCR 48                 distinguished                Para 4
(1973) 3 SCC 180                distinguished                Para 4
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4594
                                                                             C
of 2010.
      From the Judgment and Order dated 08.06.2009 of the High Court
of Judicature at Bombay in Second Appeal No. 439 of 1987.
      Sagar N. Pahune Patil, Ravindra Keshavao Adsure, Advs. for
the Appellant.                                                               D
       Aditya P. Khanna, Nicholas Choudhary, Shivaji M. Jadhav, Advs.
for the Respondents.
      The Judgment of the Court was delivered by
      MOHAN M. SHANTANAGOUDAR, J.
                                                                             E
       1. The instant appeal arises out of the judgment dated 08.06.2009
passed by the High Court of Judicature at Bombay in Second Appeal
No. 439 of 1987. Vide the impugned judgment, the High Court set aside
the findings of the Trial Court and the First Appellate Court and directed
the Trial Court to draw a preliminary decree of redemption of mortgage
                                                                             F
in favour of the Respondents herein.
      2. The factual background to this appeal is as follows:
      2.1 The land in question was Paragana watan property/Inam land
(hereinafter ‘suit land’). Such watan properties and watans were
governed by the provisions of the Bombay Hereditary Offices Act, 1874        G
(hereinafter ‘Watan Act’). Smt. Laxmibai, wife of one Bhawani Raje
Ghadge, was the watandar of the suit land. She had inducted one Mr.
Ramchandra (successor of the Respondents herein) as a permanent
Mirashi tenant of the land. Such tenancy was hereditary in nature.

                                                                             H
228             SUPREME COURT REPORTS                            [2020] 4 S.C.R.


A            2.2 On 14.05.1947, the said Ramchandra (hereinafter ‘Mirashi
      tenant—mortgagor’) executed a mortgage deed in favour of one Shankar
      Sakharam Kenjale (hereinafter ‘mortgagee’) mortgaging the suit land
      with a condition of sale for an amount of Rs. 900/- advanced by Shankar
      Kenjale for the purpose of Ramchandra’s household and personal sundry
      expenses. Per the terms of this deed, a period of ten years was envisaged
B
      for the repayment of the mortgage money and the mortgagee was placed
      in possession of the suit land.
             2.3 Meanwhile, the Bombay Paragana and Kulkarni Watans
      (Abolition) Act, 1950 (hereinafter ‘the Abolition Act’) came into force
      with effect from 25.01.1951 with a view to abolish Paragana and Kulkarni
C     watans and to make provision for the performance of functions of some
      of these offices. Under this Act, Paragana and Kulkarni watans were
      abolished and watan lands were resumed to the Government, subject to
      Section 4. It is needless to observe that the suit land, being watan property,
      was also resumed to the Government subject to Section 4, which
D     empowered the holder of the watan to seek re-grant of the land upon
      payment of the requisite occupancy price within prescribed period.
             2.4 Notably, the original watandar did not seek re-grant of the suit
      land. However, relying on a Government Resolution dated 17.05.1956
      (not placed on record) permitting persons in actual possession of the
E     watan lands to seek re-grant, the mortgagee (successor of the Appellants
      herein) paid the requisite occupancy price and obtained a re-grant of the
      suit land in his favour in the year 1960.
             2.5 The Respondents herein (successors of the mortgagor) then
      filed a suit for redemption of mortgage against Shankar Sakharam
      Kenjale (mortgagee) in Regular Civil Suit No. 190 of 1978 before the
F
      Civil Judge, Junior Division, Vaduj. It was contended that they had
      requested the mortgagee to accept the mortgage money and reconvey
      the land, but he had failed to do so. Vide judgment dated 09.12.1983, this
      suit was dismissed. It was observed that the deed dated 14.05.1947 was
      in the nature of a mortgage by conditional sale and not an outright sale.
G     Further, it was found that with the coming into force of the Abolition Act
      and the failure of the original watandar and the Mirashi tenant––mortgagor
      to secure a re-grant of the suit land, the said land stood resumed to the
      Government and the relationship of mortgagor-mortgagee between the
      parties ceased to exist. In light of this, it was held that the mortgagor’s
      right of redemption had also extinguished and the subsequent re-grant in
H     favour of the mortgagee could not be seen as one on behalf of the
      mortgagor so as to pass on the benefits of the same to him.
 SHANKAR SAKHARAM KENJALE (D) THR. HIS LRs. v. NARAYAN                      229
    KRISHNA GADE [MOHAN M. SHANTANAGOUDAR, J.]

       2.6 The Respondents herein then preferred an appeal before the       A
District Judge, Satara in Civil Appeal No. 25 of 1984. On 24.03.1987,
this appeal was dismissed. The District Court reiterated the reasoning
of the Trial Court that by virtue of the failure of the watandar and the
Mirashi tenant—mortgagor to obtain a re-grant of the suit land in their
favour, the said land had been resumed to the Government under the
                                                                            B
Abolition Act, thereby ending the mortgagor-mortgagee relationship
between the parties. Thus, in light of the subsequent re-grant made to
the mortgagee, it was found that the Mirashi tenant––mortgagor’s right
to redeem shall be deemed to have been extinguished.
       2.7 Aggrieved, the Respondents filed a second appeal before the
High Court of Judicature at Bombay in Second Appeal No. 439 of 1987.        C
Vide the impugned judgment, the concurrent conclusions of the Trial
Court and the First Appellate Court were set aside and the suit for
redemption was decreed. This was done on the basis that but for the
mortgage, the mortgagee would not have been in possession of the suit
land and could not have obtained the re-grant order in his favour. Given    D
that such re-grant was premised on the underlying mortgagor-mortgagee
relationship, it was held that the benefit obtained by the mortgagee by
virtue of such re-grant must accrue to the Mirashi tenant––mortgagor.
In this respect, reliance was placed on Section 90 of the Indian Trusts
Act, 1882 as well as the decisions of this Court in Jayasingh Dnyanu
Mhoprekar and Another v. Krishna Babaji Patil and Another, (1985)           E
4 SCC 162, and Namdev Shripati Nale v. Bapu Ganapati Jagtap
and Another, (1997) 5 SCC 185. It is against this judgment that the
Appellants have come in appeal before this Court.
      3. Heard the Counsel for the parties.
                                                                            F
       4. Learned Counsel for the Appellants relied on the decisions of
this Court in Collector of South Satara and Another v. Laxman
Mahadev Deshpande and Others, (1964) 2 SCR 48, and
Malikarjunappa Basavalingappa Mamle Desai v. Siddalingappa
& Others, (1973) 3 SCC 180, to argue that once the Abolition Act came
into force, the suit land vested with the Government and after its re-      G
grant to the mortgagee, he became the absolute owner of the land and
all rights of the Mirashi tenant––mortgagor, including the right to
redemption, came to an end.
      5. Per contra, learned counsel for the Respondents relied on
Section 90 of the Indian Trust Act, 1882 as well as the decisions of this   H
Court in Jayasingh Dnyanu Mhoprekar (supra) and Namdev Shripati
230             SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A     Nale (supra) to contend that the benefit obtained by the mortgagee by
      virtue of the re-grant must accrue to the Mirashi tenant––mortgagor.
      He also drew our attention to the proviso to Section 3 of the Abolition
      Act coupled with certain provisions of the Watan Act to argue that the
      rights of Ramchandra as a Mirashi tenant survived the resumption of
      land to the Government under the Abolition Act, and therefore his rights
B
      as a mortgagor (including the right to redemption) also continued to survive
      despite the re-grant in favour of the mortgagee.
              6. Upon perusing the record and hearing the arguments advanced
      by the parties, we find that the central issue arising for our consideration
      in this appeal is as follows:
C
            Whether the permanent Mirashi tenant—mortgagor’s
      (Respondents) right of redemption ceased to exist by virtue of the
      resumption of the suit land under the Abolition Act and its subsequent
      re-grant in favour of the mortgagee (Appellants)?

D           7. As mentioned supra, it is not disputed that Ramchandra was a
      permanent Mirashi tenant of the watandar of the suit land. Admittedly,
      such lease was subsisting as on 25.01.1951, i.e., the day on which the
      Abolition Act came into force.
            8. At this juncture, it may be relevant to note certain provisions of
      the Abolition Act as well as the Watan Act:
E
            “Section 3. Abolition of certain watans together with the
            right to office and incidents.—With effect from and on the
            appointed day, notwithstanding anything contained in any law,
            usage, settlement, grant, sanad or order—
F           (1) all Parganas and Kulkarni watans shall be deemed to have
            been abolished;
            (2) all rights to hold office and any liability to render service
            appertaining to the said watans are hereby extinguished;
            (3) subject to the provisions of Section 4, all watan land is hereby
G           resumed and shall be deemed to be subject to the payment of land
            revenue under the provisions of the Code and the rules made
            thereunder as if it were an unalienated land:
                   Provided that such resumption shall not affect the validity
            of any alienation of such watan land made in accordance with the
H
SHANKAR SAKHARAM KENJALE (D) THR. HIS LRs. v. NARAYAN                        231
   KRISHNA GADE [MOHAN M. SHANTANAGOUDAR, J.]

    provisions of Section 5 of the Watan Act or the rights of an alienee     A
    thereof or any person claiming under or through him;
    (4) all incidents appertaining to the said watans are hereby
    extinguished.”
                                                    (emphasis supplied)
                                                                             B

    Additionally, Section 5 of the Watan Act is notable:
       “Section 5. Prohibition of alienation of watan and watan
    rights.—(1) Without the sanction of [the [State] Government],
    [or in the case of a mortgage, charge, alienation, or lease of not       C
    more than thirty years, of the Commissioner] it shall not be
    competent-
       (a) to a watandar to mortgage, charge, alienate or lease, for a
    period beyond the term of his natural life, any watan, or any part
    thereof, or any interest therein, to or for the benefit of any person    D
    who is not a watandar of the same watan;
        (b) to a representative watandar to mortgage, charge, lease or
    alienate any right with which he is invested, as such, under this
    Act.
       (2) In the case of any watan in respect of which a service            E
    commutation settlement has been effected, either under section
    15 or before that section came into force, clause (a) of this section
    shall apply to such watan, unless the right of alienating the watan
    without the sanction of [the [State] Government] is conferred
    upon the watandars by the terms of such settlement or has been           F
    acquired by them under the said terms.
    It is also relevant to note Section 8 of the Abolition Act:
    “Section 8. Application of Bombay Tenancy and Agricultural
    Lands Act, 1948.–––
                                                                             G
    If any watan land has been lawfully leased and such lease is
    subsisting on the appointed day, the provisions of the Bombay
    Tenancy and Agricultural Lands Act, 1948, shall apply to the said
    lease and the rights and liabilities of the holder of such land and
    his tenant or tenants shall, subject to the provisions of this Act, be
    governed by the provisions of the said Act.                              H
232             SUPREME COURT REPORTS                            [2020] 4 S.C.R.


A            Explanation.- For the purposes of this section the expression
             ‘land’ shall have the same meaning as is assigned to it in the
             Bombay Tenancy and Agricultural Lands Act, 1948.”
               From a reading of the proviso to Section 3(3) of the Abolition Act,
      it is clear that the resumption of watan land to the Government under the
B     Abolition Act does not affect the rights of an alienee of the watandar or
      his representative of such land under the Watan Act or that of any person
      claiming through or under him. Further, in respect of watan land that has
      been lawfully leased and wherein the lease is subsisting on the day
      appointed for the coming into force of the Abolition Act, Section 8 of the
      Abolition Act accords primacy to the Bombay Tenancy and Agricultural
C     Lands Act, 1948 (hereinafter ‘Bombay Tenancy Act’) in governing the
      rights and liabilities of the holder of such land and his tenant(s).
             9. In light of this, when we turn to the facts of the present case,
      we find that the rights of Ramchandra, who was a lawful permanent
      Mirashi tenant, survive resumption of the suit land to the Government by
D     virtue of the proviso to Section 3(3) as well as Section 8 of the Abolition
      Act. This is because the tenancy created in favour of the Mirashi tenant
      subsisted as on the day on which the Abolition Act came into force,
      thereby implying that his tenancy rights were protected and continued to
      be governed by the Bombay Tenancy Act despite the introduction of
E     the Abolition Act. This is well-aligned with the general primacy accorded
      to tenancy laws over other legislations, as is also reflected in Section 8
      of the Abolition Act. Thus, it is amply clear that the rights of permanent
      tenants over watan lands were intended to subsist even after the coming
      into force of the Abolition Act.
             10. At this juncture, it may be useful to note certain other provisions
F
      of the Abolition Act, which are as follows:
             “Section 4. Holder of watan land to be occupant.—(1) A
             watan land resumed under the provisions of this Act shall subject
             to the provisions of Section 4-A, be regranted to the holder of the
             watan to which it appertained, on payment of the occupancy price
G            equal to twelve times of the amount of the full assessment of
             such land within five years from the date of the coming into force of
             this Act and the holder shall be deemed to be an occupant within
             the meaning of the Code in respect of such land and shall primarily
             be liable to pay land revenue to the State Government in
H            accordance with the provisions of the Code and the rules made
             thereunder; all the provisions of the Code and rules relating to
 SHANKAR SAKHARAM KENJALE (D) THR. HIS LRs. v. NARAYAN                        233
    KRISHNA GADE [MOHAN M. SHANTANAGOUDAR, J.]

      unalienated land shall, subject to the provisions of this Act, apply    A
      to the said land:
             Provided that in respect of the watan land which has not
      been assigned towards the emoluments of the officiator, occupancy
      price equal to six times of the amount of the full assessment of
      such land shall be paid by the holder of the land for its regrant:      B
             Provided further that if the holder fails to pay the occupancy
      price within the period of five years as provided in this section, he
      shall be deemed to be unauthorisedly occupying the land and shall
      be liable to be summarily ejected in accordance with the
      provisions of the Code.                                                 C
      (2) The occupancy of the land regranted under sub-section (1)
      shall not be transferable or partible by metes and bounds without
      the previous sanction of the Collector and except on payment of
      such amount as the State Government may by general or special
      order determine.                                                        D
      (3) Nothing in sub-sections (1) and (2) shall apply to any land—
         (a) the commutation settlement in respect of which provides
         expressly that the land appertaining to the watan shall be
         alienable without the sanction of the State Government; or
         (b) which has been validly alienated with the sanction of the        E
         State Government under Section 5 of the Watan Act.
      Explanation.—For the purposes of this section the expression
      ‘holder’ shall include—
      (i) all persons who on the appointed day are the watandars of the       F
      same watan to which the land appertained, and
      (ii) in the case of a watan the commutation settlement in respect
      of which permits the transfer of the land appertaining thereto, a
      person in whom the ownership of such land for the time being
      vests.”                                                                 G
       The above provisions indicate that, with the coming into force of
the Abolition Act, watans were abolished and all watan lands vested
absolutely with the Government, subject to Section 4. Under Section
4(1), ‘holders’ of the watans were allowed to pay a certain occupancy
price within five years from the date of coming into force of the Act and
obtain a re-grant of the land. However, according to the second proviso       H
234            SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A     to Section 4(1) of the Abolition Act, if the holder failed to pay such
      occupancy price within the five-year period, he would be deemed to be
      in unauthorised occupation of the land and would be liable to be summarily
      ejected in accordance with the Bombay Land Revenue Code, 1879.
             11. Notably, as mentioned supra, the watandar in the instant case
B     did not exercise her right to seek re-grant of the land under Section 4(1)
      of the Abolition Act. It seems, the State Government passed orders in
      G.R.R.D. No. PKA-1056-IV-L dated May 3, 1957 and G.R.R.D. No.
      2760-III-48820-L dated November 23, 1960 to grant the lands in favour
      of persons who were in actual possession. By virtue of the aforesaid
      orders, wherever the holder or watandar had failed to pay the occupancy
C     price as required by Section 4(1) of the Act before the prescribed period,
      the lands in question be granted in favour of permanent Mirashi tenants
      who were in actual possession of lands. But the Mirashi tenant in this
      matter, namely, Ramchandra did not apply for re-grant pursuant to the
      said orders. On the other hand, the mortgagee applied for re-grant, though
D     he was not a permanent Mirashi tenant.
             12. By an order dated 23.11.1960, the mortgagee (represented by
      the Appellants herein) obtained a re-grant of the suit land upon paying
      the requisite occupancy price. It is claimed that this was done on the
      basis of a Government Resolution dated 17.05.1956 permitting persons
E     in actual possession of the watan lands to seek re-grant. Notably, this
      Government Resolution dated 17.05.1956 has not been placed on record
      and nor has it been considered by the three Courts. We hasten to note
      that the effect of the Government Orders dated 03.05.1957 and
      23.11.1960, mentioned supra, was considered by this Court in para 5 of
      the judgment in Jayasingh Dnyanu Mhoprekar (supra). But the
F     Government Resolution dated 17.05.1956 is not considered by this Court
      earlier. Be that as it may, it is not in dispute that a re-grant order was
      made in favour of the Appellants’ predecessor and has not been
      questioned subsequently. Thus, proceeding on the basis that the
      Government Resolution dated 17.05.1956 existed and the re-grant was
      made in favour of the mortgagee, we find that the central question to be
G
      considered here is the effect of such re-grant on the rights of the Mirashi
      tenant––mortgagor.
             13. In our considered opinion, the failure on the part of the
      mortgagor to pay the occupancy price and seek a re-grant is not fatal to
      his rights as a Mirashi tenant as the tenancy in his favour continued to
H     subsist despite the introduction of the Abolition Act, as detailed in our
 SHANKAR SAKHARAM KENJALE (D) THR. HIS LRs. v. NARAYAN                           235
    KRISHNA GADE [MOHAN M. SHANTANAGOUDAR, J.]

discussion above. Consequently, the mortgage executed by him also                A
survived the resumption of the suit land under the Abolition Act, and it
cannot be said that the relationship of mortgagor-mortgagee between
the parties ceased to exist by virtue of such Act.
       14. It is well-settled that the right of redemption under a mortgage
deed can come to an end or be extinguished only by a process known to            B
law, i.e., either by way of a contract between the parties to such effect,
by a merger, or by a statutory provision that debars the mortgagor from
redeeming the mortgage. In other words, a mortgagee who has entered
into possession of the mortgaged property will have to give up such
possession when a suit for redemption is filed, unless he is able to establish
that the right of redemption has come to an end as per law. This emanates        C
from the legal principle applicable to all mortgages – ”Once a mortgage,
always a mortgage”.
       15. In the present case, it is clear that none of the aforementioned
conditions in which the right of redemption comes to an end exist with
respect to the mortgage deed dated 14.05.1947. As regards the impact             D
of the re-grant on such right of redemption, it must be noted that such
re-grant in favour of the mortgagee could not have been made but for
the fact that he was in actual possession of the property by virtue of his
position as a possessory mortgagee. There is no doubt that had the Mirashi
tenant––mortgagor applied for a re-grant, the suit land would have               E
certainly been granted in his favour, as the rights of permanent tenants
in watan lands were allowed to subsist even after the coming into force
of the Abolition Act. Thus, in our considered opinion, the re-grant to the
Appellants’ predecessor based on actual possession as mortgagee cannot
be divorced from the existence of the underlying mortgagor-mortgagee
relationship between the parties. Therefore, any benefit accruing to the         F
mortgagee must necessarily ensue to the Mirashi tenant––mortgagor.
      16. In this regard, it is apposite to note Section 90 of the Indian
Trusts Act, 1882, which reads as under:
       “Section 90. Advantage gained by qualified owner.—Where
       a tenant for life, co-owner, mortgagee or other qualified owner of        G
       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      H
236             SUPREME COURT REPORTS                            [2020] 4 S.C.R.


A            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.”
             A bare reading of this provision indicates that if a mortgagee, by
B     availing himself of his position as a mortgagee, gains an advantage which
      would be in derogation of the right of the mortgagor, he must hold such
      advantage for the benefit of the mortgagor.
             17. In the instant case, we find that the conditions stipulated under
      Section 90 of the Indian Trusts Act, 1882 are satisfied. As mentioned
C     supra, the mortgagee could only obtain the re-grant in his favour by
      availing himself of his position as a mortgagee, as such re-grant is traceable
      to the possession of the land accorded to him by virtue of the mortgage
      deed. Further, the said re-grant was certainly in derogation of the rights
      of the mortgagor who was the permanent Mirashi tenant and thereby
      protected by virtue of the subsisting tenancy. The fact that the lessor/
D     Mirashi tenant Ramachandra did not claim re-grant is not relevant
      inasmuch the right of redemption of a mortgagor is not extinguished by
      virtue of re-grant in favour of the original defendant inasmuch as the
      re-grant was obtained and the property was held by the original defendant
      for the benefit of the mortgagors. Re-grant made in favour of the original
E     defendant is an advantage traceable to the possession of the suit property
      obtained by him under the mortgage and the said re-grant certainly
      subserves the right of mortgagor who was a Mirashi tenant in respect of
      the suit property. As mentioned earlier, Section 90 of the Indian Trusts
      Act, 1882 casts a clear obligation on the mortgagee to hold any right
      acquired by him in the mortgaged property for the benefit of the
F     mortgagor, as he is seen to be acting in a fiduciary capacity in respect of
      such transactions. Therefore, the advantage derived by the Appellants
      (mortgagee) by way of the re-grant must be surrendered to the benefit
      of the Respondents (Mirashi tenant––mortgagor), subject to the payment
      of the expenses incurred by them in securing the re-grant. This is because
      the Mirashi tenant—mortgagors’ right to redeem the mortgage was not
G
      extinguished but was protected by virtue of the Abolition Act as well as
      under the provisions of the Bombay Tenancy and Agricultural Lands
      Act, 1948; in other words, the tenancy in his favour continued to subsist.
            18. This is also supported by the decision of this Court in Jayasingh
      Dnyanu Mhoprekar (supra) where in a similar factual scenario of the
H     mortgagee obtaining a re-grant in derogation of the right of the mortgagor–
      Mirashi tenant, this Court held as follows:
 SHANKAR SAKHARAM KENJALE (D) THR. HIS LRs. v. NARAYAN                         237
    KRISHNA GADE [MOHAN M. SHANTANAGOUDAR, J.]

      “9. ……. It is seen that the mortgagees obtained the grant in their       A
      favour by making an incorrect representation to the Government
      that they were permanent Mirashi tenants although they were
      only mortgagees. Section 90 of the Indian Trusts Act, 1882 clearly
      casts an obligation on a mortgagee to hold the rights acquired by
      him in the mortgaged property for the benefit of the mortgagor in
                                                                               B
      such circumstances as the mortgagee is virtually in a fiduciary
      position in respect of the rights so acquired and he cannot be
      allowed to make a profit out of the transaction. The defendants
      are, therefore, liable to surrender the advantage they have derived
      under the grant in favour of the plaintiffs even if the order of
      grant has become final before the Revenue Authorities, of course,        C
      subject to the payment of the expenses incurred by them in
      securing the grant. The decree of the first appellate court
      accordingly has directed that Rs 182.41 should be paid by the
      plaintiffs to the defendants along with the mortgage money.”
      19. In Namdev Shripati Nale (supra), while dealing with the              D
applicability of Section 90 of the Indian Trusts Act, 1882, this Court
observed as follows:
      “6. …....The first respondent-mortgagee failed to comply with
      the aforesaid statutory obligation. He committed a wrong or a
      default. Whether the default/wrong committed has as its basis a          E
      contractual obligation or a statutory obligation, makes no
      difference. He was taken to be a tenant by the authorities, which
      enabled him to get the regrant in his favour. That was only because
      the first respondent, as a possessory mortgagee, was in possession
      of the property. He took advantage of his position as a possessory
      mortgagee. In so doing he faulted. So, on facts, it is clear that the    F
      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
                                                                               G
      the totality of the facts and circumstances, the provisions of Section
      90 of the Indian Trusts 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         H
238              SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A            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 Trusts
             Act. We hold that the default committed by a possessory
B
             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 Trusts Act. In such cases any benefit obtained by
             the qualified owner, the mortgagee, will enure to or for the benefit
C            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 v. Narmanda Bala
             Sasmal [(1962) 1 SCR 290 : AIR 1961 SC 1353] and by K.K.
             Mathew, J. (as his Lordship then was) in Nabia Yathu
D            Ummal v. Mohd. Mytheen [1963 KLJ 1177 : AIR 1964 Ker 225]
             . The said decisions have our respectful concurrence.”
                                                             (emphasis supplied)
             20. The facts in the case of Collector of South Satara (supra)
E     and the case of Malikarjunappa Basavalingappa Mamle Desai
      (supra) were totally different and these cases were dealing with a
      different point. The litigation in these cases was not related to the rights
      of a permanent tenant under watandar. So also, the point involved therein
      was not related to the effect of the order of re-grant made in favour of
      the mortgagee. Therefore, we are of the considered opinion that the
F     dictum laid down in the aforementioned judgments is not applicable to
      the facts of the case at hand.
              21. On other hand, in our considered opinion, the question involved
      in the present litigation is squarely covered by the judgments in Jayasingh
      Dnyanu Mhoprekar and Namdev Shripati Nale (supra).
G             22. In view of the foregoing, we hold that the High Court was
      justified in decreeing the suit filed by the Respondents herein and setting
      aside the judgments of the Trial Court and the First Appellate Court. We
      do not find any reason to interfere with the impugned judgment.
      Accordingly, the instant appeal is dismissed.
H
      Devika Gujral                                                Appeal dismissed.