MAHENDRA NATH SARDAR Vs. MAHENDRA NATH HALDAR

JUDGEMENT

(1.) The respondent, Mahendra Kumar Haldar and one Harey Krishna Haldar. are the owners of an occupancy holding. On 21 Chaitra 1329 corresponding to 4 April 1923 they mortgaged it by way of conditional sale to the appellants describing the property as mukurari mourasi and the mortgagees were put in possession. According to the terms of the mortgage instrument, the usufruct of the property was to be taken by the mortgagees in satisfaction of interest only. On 26 April 1926 the mortgagees granted a sub-tenancy in respect of a portion of the mortgaged premises to one of the mortgagors, namely Mahendra Kumar Haldar, at an annual rent of Rs. 126 which was later on settled at Rs. 117 per year under Section 104, Ben. Ten. Act. The mortgagees as landlords brought a suit for arrears of rent and cesses for the years 1343 to 1346 B.S. against Mahendra Kumar Haldar. The defendant pleaded inter alia payment of a sum of Rs. 168-4-0 and that he was not liable to pay rent and cesses for the years 1345 and 1346 on the ground that the plaintiff's right to the mortgaged property had ceased on 21 Chaitra 1344 by reason of the provisions of Section 26G, Sub-section (1)(a), Ben, Ten. Act, as amended in 1940. The learned Munsif gave effect to both those pleas, refused to decree rent for the years 1345 and 1346 and gave the plaintiff a partial decree for the remaining period after allowing Rs. 168-4-0 as credit. On appeal the learned Subordinate Judge overruled both those pleas and granted a decree for rent and cesses for the whole period in suit, but rent at the rate of Rs. 117 per year and proportionate cesses. From that decree the defendant preferred a second appeal which was heard by our learned brother Henderson J. The plea of payment was not further agitated before him. The only question raised before him was whether the plaintiffs were entitled to claim rent and cesses for the years 1345 and 1346. He held that they were not. His findings are as follows: (1) that the defendant was not estopped from saying that the property mortgaged is an occupancy holding; (2) that it was open to the defendant to take the plea in the rent suit that the plaintiffs right as landlords had ceased by the end of Chaitra 1344; (3) that the Court could entertain the said plea in the absence of the co-mortgagor, Harey Krishna Haldar, and. (4) that the plea was a sound one, (a) inasmuch as there was no repugnancy between Sub-section (1)(a) and Sub-section (8) of Section 26G and that by operation of Section 1(a) the mortgage on which the plaintiffs right as landlords had rested had ceased by the end of Chaiira 1344. (5) that in any event Sub-section (8) of Section 26G was inapplicable to the facts of the case, as the mortgage was not subsisting at the date of the commencement of the Bengal Tenancy (Amendment) Act, 1940, it having been extinguished in the year 1938 by the operation of Sub-section (1)(a) of the said section. (6) that the mortgage will be extinguished on the expiry of fifteen years from the date of the registration of the mortgage instrument, unless the mortgagee took action under sub Section (8) of the said section.

(2.) We think that our learned brother is right in holding that the respondent is not estopped from showing that in fact the property mortgaged is an occupancy holding, that he could take the plea that the right of plaintiffs to get rent from him had come to an end from 1345 and that that defence could be gone into not-withstanding the fact that the co-mortgagor, Harey Krishna, was not a party to the suit. There is nothing on the record to show that the mortgagees had advanced the loan on the faith of the representation made in the mortgage instrument that the property was mokarari mourasi, which in fact it was not, and believing the same to be true.

(3.) It is settled law that although a tenant who had been inducted on the land cannot say that his landlord had no title to the land at the time of letting, he can show that subsequent thereto his title to the land had came to an end either by transfer or otherwise. That is a legitimade defence open to a tenant, and we do not see any reason why such a defence cannot be considered by the Court on the ground that another person, who is admittedly not a tenant and so an unnecessary party to the rent suit, is not on the record of the suit. At the same time we may say at once that he is not right in saying that the mortgage was not subsisting at the date of the commencement of Bengal Tenancy (Amendment) Act, 1940, and so Sub-section (8) of Section 26G is inapplicable, on the ground that it had been extinguished in 1938 by the operation of Sub-section (1)(a). The question as to whether a mortgage was subsisting on that date cannot, in our judgment, be decided on the terms of Sub-section (1)(a) of the said section. If the mortgage had not been redeemed or foreclosed before that date it will be held to be subsisting on that date within the meaning of sub-section (8).