1. The plaintiff, who is described as a istimrari pattadar (permanent lease-holder) under an instrument of the year 1897 in respect of certain sir land, sues to redeem a mortgage created by the predecessor in title of his lessor in the year 1840 over a property, of which the sir land leased to the plaintiff is a part. The question for decision in this appeal is whether the plaintiff has such an interest in the mortgaged property as would give him a right to redeem under the provisions of Section 91 of the Transfer of Property Act. The lower appellate Court has held that the plaintiff has no such interest under his lease as would confer upon him the right to come in and ask to redeem the property.
2. The plaintiff comes in second appeal to this Court, and it is contended that under the special conditions of the lease in the plaintiff's favour he has such an interest in the property as would confer upon him the title to come in and redeem. The terms of the so-called patta are somewhat peculiar.
3. In consideration of a sum of Rs. 800 premium' the plaintiff is placed in possession of the sir lands specified in the document and, subject to the yearly payment of the rent of Rs. 40-6-6, he can do whatever he likes with the property. Even for nonpayment of rent he may not be ejected, and the lessors have their remedy to recover their rent by proceeding against other property. If the title of the lessors is found to be defective, they are liable to repay the Rs. 800 premium. The lease was one in perpetuity. The terms of the document would, no doubt, bring it under the definition of 'lease' as given in the Transfer of Property Act. The effect of the document is to confer all rights of ownership upon the plaintiff, subject to payment of a yearly rent. I am referred on behalf of the appellant to the following rulings: Paya Matathil Appu v. Kovamel Amina (1895) I.L.R., 19 Mad., 151, Radha Pershad Misser v. Monohur Das (1860) I.L.R., 6 Calc., 317, Jugul Kissore Lal Sing Deo v. Kartic Chunder Chottopadhya (1892) I.L.R., 21 Calc., 116, Kasumunnisa Bibee v. Nilratna, Bose (1881) I.L.R., 8 Calc., 79 and Ram Subhag v. Nar Singh (1905) I.L.R., 27 All., 472.
4. In the last case it was held that a sub-mortgagee had a right to redeem a prior mortgage. In the Madras case it was held that the word 'interest' was not necessarily confined to a right of ownership, but was sufficiently large to include any minor interest such as that of a tenant or a person having a charge. In the same judgment we find a dictum of Fry, L.J., to the following effect: 'According to the general law of the land a person who claims as lessee under a mortgagor after the mortgage and has thereby derived an interest in the equity of redemption has the right to redeem.'
5. The Calcutta cases deal with the rights of patnidars. In the case reported in 8 Calc., 79, I find at p. 87 the observation of Pontifex J., to the following effect: 'In this country patnis, zare peshgi leases and interests of that nature are very considerable interests in the land and cannot be looked upon as mere leases for a term of years, which a mortgagee might have the right to disregard. They are in fact substantial proprietorial interests, on the grant of which, as in this case, considerable premiums are paid; and it is only equitable that persons in that position should be allowed the opportunity of preserving their interests by redeeming any mortgages made by the superior holder.'
6. In a more recent case--Girish Chunder Dey v. Juramoni De (1900) 5 C.W.N., 83, it was held that a person holding a ryati interest, in property had no such interest as would confer upon him a right to redeem the property. Upon the facts as stated in the report I am unable to ascertain what were the terms of the ryati lease in favour of the plaintiff in that case.
7. For the respondent I am referred to Section 85 of the Transfer of Property Act, and it is contended that the plaintiff had no such interest in the property mortgaged as would render it necessary for him to be joined as a party under the provisions of that section. The test I am asked to apply is whether the plaintiff had such an interest in the mortgaged property as would be affected by the mortgage. Looking to the peculiar terms of the document under which the plaintiff holds, I am of opinion that the plaintiff had such an interest in the property as would confer upon him the right to come in and ask to redeem. The plaintiff cannot be described as a mere tenant or an ordinary lessee. Subject to the payment of this fixed amount every year he has all the rights of ownership.
8. The view that I take in this case is based upon the peculiar facts of the case. I must therefore allow the appeal, set aside the decree of the lower appellate Court and remand the case for trial on the merits. Costs of this appeal will be costs in the cause.