Jotindra Mohan Pal and others vs Godadhur Madak and others

Banerjee, J.—This appeal arises out of a suit brought by the Plaintiffs-Appellants for khas or direct possession of 61/2 annas of certain immovable property and for a declaration of their dartaluki right or right as holders of a subordinate tenure in the same. The allegations upon which they base their claim are shortly these :-That Amrita Lal Sen, Jadab Lal Sen and Kali Tara Gupta, who owned and held as dartalukdars an 8 annas share of mehal No. 9863, belonging to Trilochan Chakraverty, Defendant No. 6, mortgaged their durtalukdari right in the said share to the father of Plaintiff No. 3 on the 28th of Assar 1284, corresponding to some day of July 1877; that in execution of the decree obtained upon the said mortgage, the mortgaged property was sold and purchased by the decree-holders on the 14th of November 1882, and the sale was confirmed on the 18th of January 1883; that the auction-purchasers, who are now represented by Plaintiffs Nos. 1, 2, and 3, sold 1 annas share out of the 8 annas share purchased by them to Plaintiff No. 4, and 11/2 anna to certain other persons, and thus the Plaintiffs Nos. 1-4 now own 61/2 anna of the said dartaluk; that Defendants Nos. 1, 2 and 3 setting up a right as auction-purchasers of a putni, of the 8 annas share of mehal 9853 at a sale for arrears of rent due from Amirta Lal Sen, who is alleged to have held the mehal as a putni, have obtained decrees for rent against certain tenants, and thus dispossessed the Plaintiff''s; that the Plaintiffs are not aware that Amirta Lal Sen and his co-sharers had any putni right in the disputed mehal excepting the dartaluk; and that even if the Defendants have purchased the alleged putni right in collusion with Amrita Lal Sen, such purchase of a putni, which is a tenure held intermediately between the zemindar and the actual cultivators, cannot stand in the way of the Plaintiffs'' obtaining khas possession. The defence, so far as it is necessary to consider it now, was that the zemindar Trilochan having in 1878 brought a suit against Amrita Lal Sen and his co-sharers for rent of the dartaluk, an amicable settlement was arrived at in good faith, by which the rent of the dartaluk, which was variable, was fixed in perpetuity, that no separate putni taluk was created by the settlement; that the said dartaluk at a fixed lent, was sold for its own arrears of rent and purchased by the Defendants; and that the Plaintiffs not having obtained possession and paid rent, nor having got their (sic) registered in the zemindar''s office, have lost their right, if they had acquired any.

The Courts below have found for the Defendants and dismissed the Plaintiffs'' suit.

In second appeal, it is contended for the Plaintiffs-Appellants that the settlement come to between the zemindar Trilochan and the dartalukdars Amrita Lal Sen and his co-sharers in 1878 after the mortgage of the dartaluk by the latter, cannot affect the durtaluk, so far as the rights of the mortgagee and of the purchasers under the mortgage-decree were concerned; and that what was sold in execution of the decree for arrears of rent being in fact a putni taluk, the sale could not affect the dartaluk, which still subsists as subordinate tenure under the putni, created long before the putni came into existence.

The first branch of this contention may be sound so far as it relates to the rights of the mortgagee and of purchasers in execution of the mortgage decree, as against the mortgagor and persons deriving title from him; but I do not think it is correct to the extent to which it is pressed. The creation of a mortgage gives certain rights to the mortgagee over the mortgaged property; but it does not necessarily prevent third parties from dealing with the mortgagor still as the owner of the property, nor is the mortgagee entitled in every case to ignore the rights arising out of such dealings in favour of third parties. Thus, in Byjnath v. Ramdin 21 W. R. P. C. 233, the Privy Council held that a partition of an estate effected by the Collector under Regulation XIX of 1814 at the instance of the co-sharers of a mortgagor of his undivided share of the estate was binding on the mortgagee, and his mortgage security was by such partition transformed from an undivided share in the whole estate to the portion of it allotted to the mortgagor exclusively. And the same rule has, in Hem Chunder v. Thakomoni I. L. R. 20 Cal. 533, been held to apply to the case of a partition effected by the Civil Court. In Lala Initteyal v. Raj Chunder Roy 15 W. R. 448, the mortgagee of a tenure was held to be bound by an agreement entered into by the mortgagor with the landlord subsequent to the mortgage for the payment of increased rent. I may add that under the Rent Law in this country the landlord is not bound to look beyond his own register, he is entitled to sue his registered tenant for arrears of rent and to sell the tenure in execution of his rent decree; and the purchaser acquires the tenure freed from the claims of transferees from the registered tenant, who have Neglected without sufficient reason to register their names in the landlord''s office. See Shyam Chand Kundu v. Broja Nath Pal Chaudhuri (4) see also sees. 12 -17, 159 and 170 of the Bengal Tenancy Act.

It was contended by the learned vakil for the Plaintiffs-Appellants that the above rules hold good only in cases where a tenure is dealt with by the sole landlord or by the entire body of joint-landlords, and that they have no application to a case in which one, of several joint-landlords, such as Trilochan was, deals with a tenure held under him. But no such contention was distinctly raised in either of the Courts below, and neither the facts alleged in the plaint, nor those found by the Courts below, afford any basis for it. On the contrary, the facts alleged, as well as those found, go to show that the dartaluk held under Trilochan was a separate tenure. But be that as it may, the permanent tenure at a fixed rent, into which the durtaluk under Trilochan was converted by the settlement entered into between him and Amrita Lal and his co-sharers, was, beyond question, a separate and distinct tenure, of which Trilochan was the sole landlord, and the decree obtained by '' him for the rent of that tenure was clearly a valid decree, and the sale in execution thereof must be held to have passed that tenure to the principal Defendants.

The rules above referred to are no doubt, subject to one qualification, namely, that the transactions between the mortgagor and third parties in order that they may be (sic) on the mortgagee and persons deriving title from him, must have been free from fraud and collusion. In the present case, though collusion is alleged in the plaint, no collusion is made out; on the contrary, the lower Appellate Court has found that the arrangement come to between the mortgagors and the landlord was not prejudicial to the mortgagees. The first branch of the argument advanced in support of the appeal therefore fails.

It remains now to consider the second branch of the Appellants'' contention. The terms of the pottah or lease by which the new tenure at a fixed rent was created, clearly indicate that there was no separate putni tenure created over the durtaluk, but the old durtaluk, of which the rent was variable, was transformed into a tenure at a fixed rent. That being the case, and this tenure at a fixed rent called sometimes a putni having, as has been shown above, passed to the principal Defendants by the sale in execution of a decree for its own arrears of rent, there is nothing which the Plaintiffs can recover in this suit.

If the tenure at a fixed rent into which the durtaluk was transformed had still remained the property of the mortgagors, there might have been some grounds for the contention that the Plaintiffs, who have purchased the durtaluk mortgaged in execution of the mortgage decree should be treated as the holders of a subordinate tenure at a variable rent under the tenure at a fixed rent held by mortgagors. But the tenure having passed into the hands of the Defendants, who are innocent purchasers for value, the Plaintiffs can have no equitable claim against them. If they suffer, they suffer for their own fault. They took no steps to save the tenure from sale by paying off the rent, though they were aware of the sale and made bids for the tenure, as is found by the first Court and is not denied in the argument before us.

The second branch of the Appellants'' J contention, therefore, must also fail; and the appeal should, in my opinion, be dismissed with costs.

Maclean, C.J.

I concur in the conclusion at which Mr. Justice Banerjee has arrived, though I admit with some hesitation, I do not think the case is free from doubt; but although I feel that doubt, it is not sufficient to warrant me in differing from my learned brother''s conclusion, whose experience in a case of this class is so much superior to my own. I only desire to add, that whilst, in my opinion, the mortgagor could not do anything to prejudice his mortgagee''s interests, there are findings of fact by the Court below, which, to my mind, tend to show that the alteration in the tenure was advantageous to the mortgagee, and that it is a fair inference to draw from the evidence, that he, by his subsequent action and conduct, must be taken to have ratified and adopted the transaction. His conduct is scarcely compatible with any other view.