Kannye Loll Sett and Another vs Nistoriny Dossee and Another

Richard Garth, C.J.—The Judge of the Small Cause Court has made a mistake in this case.

Whenever the subject of a mortgage is leasehold property, and the mortgagee is put in possession of it, under circumstances which amount to an assignment or transfer of the leasehold interest, the mortgagee becomes liable, as a rule, to pay the rent. But in this case there is no doubt about the matter, because the mortgagee has not only obtained possession, but has had her name entered in the landlord''s books as the tenant of the property in the place of Toolamoney. Nistoriny is, therefore, liable for the rent, and the suit must be dismissed altogether as against Toolamoney.

The Small Cause Court Judge appears to have been misled by the language of Section 76 of the Transfer of Property Act, but it will be found that neither that section, which relates to mortgagees in possession, nor Section 65, which relates to the duties of mortgagors, contain any rules applicable to cases like the present. Those cases are, therefore, governed by the general law.

The plaintiff will be entitled to the costs of this reference from the defendant Nistoriny.