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Issues: (i) Whether the buildings standing on mortgaged land and the survey numbers supported only by patta could be brought within the mortgage charge. (ii) Whether the plaintiff could recover the amount paid to save the properties from income-tax sale either as a mortgage charge or by a personal decree. (iii) Whether the agreement in Ext. H exonerated the second defendant's share in items 1 and 6 of Schedule A and the building bearing No. 8/367, and whether the building in items 2 and 3 of Schedule C was liable to sale.
Issue (i): Whether the buildings standing on mortgaged land and the survey numbers supported only by patta could be brought within the mortgage charge.
Analysis: A transfer of land passes, unless a different intention is expressed or necessarily implied, all interests the transferor can pass in the land as well as things attached to the earth. A house embedded in the earth is immovable property, and buildings erected on mortgaged land pass with the land. Where no separate title deed exists and the patta is the only document relating to the survey numbers, the absence of another title deed does not defeat the creation of a charge if the document handed over is the only available title evidence.
Conclusion: The buildings on the mortgaged land were liable under the mortgage, and the plaintiff was entitled to a charge over the survey numbers supported by the patta.
Issue (ii): Whether the plaintiff could recover the amount paid to save the properties from income-tax sale either as a mortgage charge or by a personal decree.
Analysis: Money spent by a mortgagee is recoverable under the preservation principle only when it is necessary to prevent destruction, forfeiture, or a sale that would extinguish the security. Payment to prevent an income-tax sale which does not impair the mortgage security is not within that rule. The payment was also not one made lawfully so as to attract restitution under the general principle embodied in Section 70 of the Indian Contract Act.
Conclusion: The plaintiff was not entitled to a charge or a personal decree for the amount paid to prevent the income-tax sale.
Issue (iii): Whether the agreement in Ext. H exonerated the second defendant's share in items 1 and 6 of Schedule A and the building bearing No. 8/367, and whether the building in items 2 and 3 of Schedule C was liable to sale.
Analysis: Ext. H was construed according to its plain terms, which referred to the release of the properties standing in the names of defendants 2 and 6, namely those covered by Schedule B, and did not expressly or by necessary implication extend to the second defendant's share in items 1 and 6 of Schedule A. A building on transferred land passes with the land, and the absence of a separate title deed for the building did not exclude it from the mortgage charge. The equities arising from the payment by the vendee justified a direction postponing the sale of specified interests.
Conclusion: Ext. H did not release the second defendant's share in items 1 and 6 of Schedule A, and the building in items 2 and 3 of Schedule C remained liable, though subject to the directions as to the order of sale.
Final Conclusion: The plaintiff obtained additional mortgage relief and the decree was modified by setting aside the direction that the buildings should be sold last, while the other connected objections were rejected, subject to limited directions regulating the order of sale.
Ratio Decidendi: A transfer of land carries buildings and other things attached to the earth unless a contrary intention appears, and a mortgagee may recover preservation expenses only when the payment is necessary to avert loss of the security.
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