Decided on March 31,1948

Kamla Prasad And Others Appellant
Bhikhan Mahton And Others Respondents


Agarwala, C.J. - (1.) THESE three Letters Patent Appeals are from a decision of Mukharji J. and arise out of three suits which were tried together. The suits were instituted by usufructuary mortgagees for recovery of rent, one of them being for part of the year 1350 and the other two for part of the year 1351. The defence was that the rent had been paid to the mortgagor. The fact that the mortgagor had been paid the rent is not in dispute. The only question is the effect of the payment to him.
(2.) ON behalf of the appellants, reliance is placed on the decision in Bibi Mukhduman v. Khairat Ahmed, 3 Pat. L. w. 245. The facts of that case were that A executed an ijara in favour of B and the latter'a name was thereupon registered under the Land Registration Act as mortgagee. B, however, failed to obtain possession. Thereafter, the property was sold for arrears of rental and was purchased by c, whose name was registered as proprietor. B then sued the tenant for rent. The defence was that the payment had been made to C, and that as B was out of possession, he was justified in paying to 0. It was held that the tenant was not entitled to resist the claim of B, for, although C was registered as proprietor, he was obviously not entitled to recover rent in view of the existence of a mortgage in favour of B, who was registered as mortgagee in possession. The facts of that case are indistinguishable from the, facts of the present case. The respondents, however, rely on the decision in Jadoo Potedar v. Champabati,, 23 Pat. 858 where, on a consideration of the provisions of S. 60, Tenancy Act and S. 79, Land Registration Act, it was observed that the effect of these two sections was that the moment a tenant produces a receipt, granted by a person who is registered as proprietor, manager or mortgagee of an estate or of his agent authorised to receive rent, that receipt is sufficient discharge for the rent, irrespective of who was in fact entitled to it. This observation, however, goes beyond the necessity of the case. The facts of that case were that the receipt had been granted by the Sadhaua Pataudar who was in possession The observation referred to, therefore, must be regarded as obiter. The facts of the present case being similar to those of the case in Bibi Mukhduman v. Khairat Ahmad,, 3 Pat. L. W. 245 I would follow that case, with the result that the decision of the learned Single Judge who decided these appeals must be reversed and the plaintiffs' suits decreed with costs throughout. Meredith J. I agree. The decision in Bibi Mukhduman v. Khairat Ahmad,, 3 Pat. L. W. 245 appears to me directly in point. It is a decision of a Division Bench of this Court and is binding upon us. In any event, with respect, I think it is right. It seems to me that once the mortgagee is registered as in possession under S. 44, Land Registration Act, then as long as that entry stands, the proprietor is not entitled to realise rent. Nor is any one entitled to plead payment to him; because in substance his name as rent receiver must be regarded as displaced by that of the mortgagee in Register D and the proprietor is relegated to the position of a third person under S. 60. If he redeems the mortgage, it is his duty within six months to get the entry in Register D altered in his favour so as to displace that of the mortgagee, and it is the duty of the tenants not to pay him unless and until they find that the entry has been altered in this respect.;

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