Tali Mahton and Others vs Lekhraj Mahton and Others

Das, J.—In this suit the plaintiffs claim the right to redeem certain mortgages executed by defendant 10 in favour of the defendants first party. That right has been denied to the plaintiffs by the judgment of the lower appellate Court. Hence the plaintiffs appeal.

Shortly stated the facts are as follows: Between 1897 and 1905 the defendant 10 executed five successive Usufructuary mortgages in respect of certain khas lands in her possession in favour of the defendants first party. The documents provided that the mortgagees should pay the landlords rent as it fell due; and it appears that the mortgagees in terms of the mortgages in fact paid the rent to the landlord as it fell due. On the 6th October, 1917, the defendant 10 executed a usufructuary mortgage in favour of the plaintiffs. It is as subsequent mortgagees that the plaintiffs claim the right to redeem the prior mortgages in favour of the defendants first party. The defendants first party resisted the suit on the ground that they have a tenancy right in the subject matter of the suit. They contend that in the events that happened the landlord treated the holding as abandoned, entered upon the holding and then settled the land with them. The Court of first instance came to the conclusion that the defendant 10 did not abandon the land in suit and gave a decree to the plaintiffs substantially as claimed by them. The lower appellate Court has, however, come to a different conclusion.

The critical finding of the Court below may be stated in his own words:

It is clear that defendant 10 abandoned the holding and the village and her house which fell down. In my opinion the execution of the zerpeshgi deeds in favour of the defendant and giving over possession to them in respect of non-transferable occupancy holding coupled with the fact of the abandonment of the village and her house and her ceasing to pay rent and having any concern with this holding amounts to the abandonment of the holding.

It is not disputed by Mr. Sushil Madhav Mullick appearing on behalf of the respondents that the mere execution of a zerpeshgi deed and putting the mortgagee in possession of the holding does not necessarily amount to an abandonment of the holding. But it is said that the learned Subordinate Judge has gone further and held that defendant 10 did abandon the village and took up her residence in another village and that in these circumstances the learned Subordinate Judge was entitled to come to the conclusion that there was an abandonment in fact. But it is again conceded that if the case had to be considered by reference to the terms of Section 87, Bengal Tenancy Act, then a case of abandonment has not been established, for it is clear that defendant 10 made provision for the payment of the rent to the landlord as it fell due from time to time. But it was then contended that although the landlord may not in the circumstances of the case have treated the holding as an abandoned holding, he was entitled to go to the civil Court and ask that Court to give him khas possession of the holding; and in support of this argument a decision of the Calcutta High Court in the case of Monohar Pal v. Ananta Moyee Dasya 17 C.W.N. 802 was relied upon. That, however, was a case that was decided on its own facts; and it must be noted that the Court in coming to the conclusion to which it did, relied strongly upon the fact that the landlord strenuously denied the receipt of rent. In this case it is not disputed that the rent was in fact paid by the tenant to the landlord.

I have very grave doubts whether on these facts the civil Court would have given the landlord a decree for khas possession. But it is not necessary to decide that point, for it does not arise. The mortgagee being in possession had a certain duty towards the mortgagor and it was his clear duty to maintain his possession as against the landlord. He could not by suffering dispossession put an end to the tenancy and then proceed to take a settlement of the land from the landlord. Mr. Sushil Madhav Mullick contends that the mortgagee was in a hopeless position as he thought that he had no case at all. But with this contention I do not agree. Abandonment u/s 87 has not been established and there is no decree of the civil Court giving the right to the landlord to obtain khas possession of the holding. This being the position, the finding at which the learned Subordinate Judge has arrived cannot be supported and it seems to me that apart from any other conclusion the mortgagee cannot change his character as a mortgagee by taking a settlement from the landlord; for if he takes a lease in his own name, it must be held in law that he has taken it for the benefit of the mortgagor.

I would allow the appeal with costs in all the Courts, set aside the judgment and the decree of the Court below and restore the judgment of the Court of first instance.

James, J.

I agree.