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Nakchedi Bhagat Vs. Nakchedi Misr and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All329
AppellantNakchedi Bhagat
RespondentNakchedi Misr and ors.
Excerpt:
mortgage by tenant at fixed rates - ejectment of mortgagor by zamindar--suit for redemption against mortgagee in possession of the mortgaged property. - - , in may 1872, the tenant at fixed rates had failed to pay the arrears decreed, and thereupon the zamindar, decree-holder, proceeded against the tenant at fixed rates and ejected him under act no......j.1. this was a suit for the redemption of a mortgage. the plaintiff had been a tenant at fixed rates of certain land. whilst he was such tenant he granted the mortgage of his fixed rate holding now sought to be redeemed. it was a usufructuary mortgage, and possession was given to the mortgagee. afterwards the tenant at fixed rates became in arrear in payment of his rent. a decree for arrears of rent was obtained against him under act no. x of 1859. the decree was obtained on a compromise, and was made in accordance with the terms of the compromise, and the terms were that the tenant at fixed rates should have twelve months within which to pay up the arrears, otherwise he should be ejected. on the expiration of the twelve months, viz., in may 1872, the tenant at fixed rates had.....
Judgment:

John Edge, Kt., C.J. and Blennerhassett, J.

1. This was a suit for the redemption of a mortgage. The plaintiff had been a tenant at fixed rates of certain land. Whilst he was such tenant he granted the mortgage of his fixed rate holding now sought to be redeemed. It was a usufructuary mortgage, and possession was given to the mortgagee. Afterwards the tenant at fixed rates became in arrear in payment of his rent. A decree for arrears of rent was obtained against him under Act No. X of 1859. The decree was obtained on a compromise, and was made in accordance with the terms of the compromise, and the terms were that the tenant at fixed rates should have twelve months within which to pay up the arrears, otherwise he should be ejected. On the expiration of the twelve months, viz., in May 1872, the tenant at fixed rates had failed to pay the arrears decreed, and thereupon the zamindar, decree-holder, proceeded against the tenant at fixed rates and ejected him under Act No. X of 1859. The Collector of the district made an order of ejectment, and on the 12th of June 1872, formal possession was given to the zamindar, landlord, decree-holder. It appears that the usufructuary mortgagee was permitted by the zamindar to continue in occupation of a portion of the lands, and several years after, when the zamindar sought to eject the mortgagee, it was held that as to a portion of these lands the mortgagee had acquired a right of occupancy. We presume that the mortgagee had been in occupation for more than twelve years after the proceedings in ejectment had determined.

2. On these facts the mortgagor now seeks redemption of the mortgage, it being contended on his behalf that as his mortgagee was put into possession by him under the usufructuary mortgage and is still in possession of a portion of the property mortgaged, the mortgagee cannot deny the mortgagor's title and cannot assert that a mortgage is not still continuing and capable of being redeemed, and cannot dispute that if there is redemption of the mortgage the plaintiff is entitled to be reinstated in possession by the defendant-mortgagee. The suit is really one by which a former tenant at fixed rates, who was ousted in 1872 from his tenancy, and whose tenancy then determined, seeks to be again placed in possession of the lands or some portion of them, on a contention that, as his mortgagee is still in possession, his tenancy at fixed rates was reinstated or continued. As a general rule, neither a mortgagee nor a tenant can dispute his mortgagor's or landlord's title unless that title has determined. If the title of the mortgagor in the one case or of the landlord in the other has determined, the mortgagee or the tenant can show that the title under which be entered has determined in fact and in law. Now the tenancy at fixed rates undoubtedly determined on the ejectment in June 1872, and it is needless to observe that in this case no new tenancy at fixed rates could possibly have been created. What the tenant at fixed rates had done by the mortgage was that by granting that mortgage he gave to the mortgagee a right to go into occupation of the fixed rate holding. He did not transfer his right of tenancy. When the mortgagor's title determined, the usufructuary mortgage, so far as it depended on that title, determined also. The fact that the zamindar allowed the mortgagee after 1872 to continue in possession and pay rent to him direct did not keep alive the tenancy at fixed rates of the mortgagor which had already determined, and it did not create in favor of that mortgagor any right of tenancy whatever. The case is similar to that of a landlord who ejects his tenant, the tenant having sublet. If the sub-tenant's title depends upon his immediate lessor's title, it falls to the ground with that lessor's title; but the landlord is not bound to eject the sub-tenant, if he prefers to keep him on as a tenant and to allow him to attorn to himself.

3. The first Court decreed the claim in part. The Lower Appellate Court dismissed the suit entirely. This is the plaintiff's appeal. We dismiss the appeal.


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