Dasain Sahu and Another vs Mt. Ramdulari Kuar and Others

Jwala Prasad, J.—This is an appeal by the plaintiffs. They obtained a mortgage-decree on foot of three simple mortgages executed by one Badri Narayan in favour of appellant 1 and the father of appellant 2 on 2nd February 1905, the 21st of August 1906 and the date of the third mortgage is not known. The mortgage decree was obtained in suit No 144 of 1913. In execution of that decree the plaintiffs purchased on 10th February 1916, nine annas nine pies pokhta share of the mortgagor in Mauza Manoharpur Gambhair and obtained delivery of possession on 8th May 1916. They did not obtain possession of the zerait land in suit on account of the same having been given in mukarrari to Sheodutt Singh, husband of defendant 1, on 21st January 1909, and the name of respondent 1 was recorded in respect of the said zerait land in the revisional Record-of-Rights. The plaintiffs say that they obtained possession of the zerait land but were subsequently dispossessed by the respondent in 1328 Fasli and consequently they pray for recovery of possession.

The Courts below have held that the plaintiffs never obtained possession of the land in suit in execution of the mortgage decree and the same had always been in possession of respondent 1 on the strength of the mukarrari lease executed by the mortgagor Badri Narayan, who was the former proprietor of the land in dispute. The Courts below have also held, in spite of the contention of the plaintiffs to the contrary, that the mortgage transaction was bona fide and was not farzi for the benefit of the mortgagor Badri Narayan. Two properties were mortgaged to secure the repayment of the mortgage debt, namely, the milkiat share in Manoharpur Gambhair and Manoharpur-gang. The plaintiffs in execution of their mortgage decree sold only one of them Manoharpur Gambhair and as the entire debt was satisfied by the sale proceeds thereof they did not and could not proceed against Manoharpur-gang. Both the Courts below have therefore concurrently held that the value of the mortgaged properties was more than sufficient to pay off the mortgage debt and that the grant of the mukarrari lease of four bighas zerait land in the village by the proprietor did not in any way deteriorate the value of the property so as to prejudicially affect the security afforded to the mortgagee.

The learned advocate on behalf of the appellants contends that the mortgagor had no right to grant a permanent lease in respect of any portion of the mortgaged property, irrespective of whether the lease deteriorated the security afforded to the mortgagee or not. It is also contended that the mortgagor had no right to take Rs. 600, the premium for the mukarrari lease, from the husband of defendant 1 as a consideration for giving him the permanent right in the property in dispute. This contention is based upon the new provision in the Transfer of Property Act contained in Section 65-A. That section curtails the right of the mortgagor in possession to grant permanent leases and forbids the taking of premium. This section was added in 1929 by Section 30, of Act 20 of 1929, and the object of the new provision in the Act was to set at rest the conflict of views entertained by different High Courts with respect to the right of the mortgagor in possession to grant leases, notably the view taken by the Allahabad High Court in Wazir Ali v. Moti Chand [1905] 2 A.L.J. 294 and Kiran Chandra Bose Vs. Dutt and Co., ,

The new provision in question has to some extent made the position of the mortgagor in possession similar to that of a mortgagor in England where unlike the Indian law ownership in the property was transferred by the mortgagor to the mortgagee and the mortgagee obtained a legal title in the property as distinguished from the equitable title which is given to the mortgagee under the Indian law. The new provision contained in Section 65-A does not apply retrospectively to the present mortgage in suit. Section 66 of the Act prohibits the mortgagor from doing any act which is destructive or permanently injurious to the mortgaged property if by that act the security is rendered insufficient. Therefore prior to the introduction of Section 65.A in 1929 the mortgagor in possession of the property in the case of a simple mortgage was entitled to transfer or deal with the property in any way he liked provided the mortgagee''s security was not rendered insufficient. He could grant permanent leases subject to the same condition. This view is supported by the decision of the learned Chief Justice of this Court Sir Dawson-Miller in the case of Natho Singh v. Lachu Singh AIR 1928 Pat. 238. His Lordship held in that case that a mortgagor in possession is entitled to lease out the mortgaged property permanently irrespective of its effect on the mortgagee provided it is not destructive or permanently injurious to the property so as to render the mortgagee''s security insufficient. The purchaser of the property in execution of the mortgage decree is not entitled to turn the lessee out. His Lordship relied upon the case in Wazir Ali v. Moti Chand [1905] 2 A.L.J. 294. Similar is the principle enunciated by Sir Lawrence Jenkins, C.J., of the Calcutta High Court in the case of Balmukund Ruiya v. Motilal Barman [1915] 32 I.C. 195: vide also the recent decision of this Court in the case of Beni Prasad v. Parmeshwar Singh AIR 1931 Pat. 193 decided on 1st July 1930. The learned advocate on behalf of the appellants does not now dispute the view taken in the aforesaid cases, but contends that defendant 1 is not entitled now to resist the claim for khas possession of the land in dispute, inasmuch as her husband Sheodutt Singh was made a party to the mortgage suit of 1913 and he did not put forward his claim that the mukarrari right obtained by him in the zerait land in dispute was not liable to be sold in execution of the mortgage decree. Now the husband of defendant 1 had redeemed the prior usufructuary mortgage over the zerait land in question, dated 21st September 1894, created by Mt. Rajo Kuer out of the consideration money of Rs. 600 paid by him for obtaining the mukarrari lease in respect of the zerait land in question. The prior zerpeshgi debt was of Rs. 400 and this debt was binding on the appellants. The husband of defendant 1 had obtained the right to redeem the property in question and as such he was impleaded as defendant in the mortgage suit No. 144 of 1913 instituted by the plaintiffs to recover their mortgage debt. This fact therefore does not at all affect the right of defendant 1 to remain in possession of the zerait land in question as a permanent mukarraridar.

The result is that the appeal is dismissed with costs.

James, J.

I agree.