B.K. Mukherjea, J.
1. This appeal is on behalf of the plaintiffs and it arises out of a suit commenced by them in the Court of the Sadar Munsif at Faridpur for recovery of khas possession of the land in suit on establishment of their title to the same as purchasers at a mortgage sale.
2. The disputed property appertains to C.S. Dag No. 501 of Mouza Faridpur and it admittedly belonged to one Monoranjan Chowdhury whose interest was recorded in Khatian No. 149 as kayemi mokarari jote bearing a rental of Rs. 16 a year. Under this mokarari interest of Monoranjan there was a non-transferable tenancy held by one Patal bearing a rental of Rs. 10 and under Patal's tenancy again there was an under-raiyati held by one Umesh Sen.
3. On 27-9-1926, Monoranjan executed a mortgage bond in favour of some of the plaintiff's and the predecessor of the rest to secure an advance of Rs. 20,000 advanced by the latter and his mokarary right in G. Section Plot No. 501 was one of the properties included in the mortgage. Sometime before the execution of the mortgage deed Patal had executed a heba-bil-ewaj in favour of one Maijuddi and Monoranjan instituted a suit against Maijuddi and others for recovery of khas possession of the lands comprised in Patal's tenancy on the allegation that Patal having no transferable right in the lands, no title accrued to the transferee on the basis of the transfer. This suit was Title Suit No. 171 of 1926 of the Court of the Sadar Munsif of Faridpur and the suit was pending when the mortgage bond mentioned above was executed by Monoranjan. The suit was decreed by the trial Court but the judgment was reversed on appeal. Thereupon there was a second appeal taken to this Court by Monoranjan and this Court sent the case back on remand for rehearing. After rehearing, the lower appellate Court affirmed the judgment of the trial Judge and dismissed the appeal. This final judgment is dated 31-5-1933. In execution of this decree Monoranjan took khas possession of 0. Section Plot No. 501 and on 23-11-1923, he granted a permanent mokarari lease to defendant 1 Sasadhar Mandal in respect of the southern 5 cottas of land comprised in this C.S. Dag on receipt of a selami of Rs. 375 and at a fixed rental of Rs. 7/8/0 a year. Defendant 1 who is a pleader raised structures on the land and is even now living there with his family.
4. After the lease was granted the mortgagees instituted a suit to enforce the mortgage bond and besides the mortgagor Sasadhar defendant 1 in this suit was impleaded as a party defendant. The suit was not contested by any of the defendants and it culminated in an ex parte preliminary decree on 1-3-1935. The decree was, made final on 30-7-1935. It was then put into execution and all the mortgaged properties were sold and purchased by the decree-holders themselves on 19-12-1935. The sale was confirmed on 24-12-1936, and the purchasers thereafter took delivery of possession through Court. In respect of C.S. Plot No. 501 the decree-holders got only symbolical possession. They asked defendant H to quit the land which was in his possession and on his refusal to do so the present suit was brought.
5. The plaintiffs' ease was that Monoranjan had no right to grant a lease after he executed the mortgage and the lease was not binding on the plaintiffs. Even if the lessee acquired any rights on the strength of the lease they were extinguished by the decree in the mortgage suit to which Sasadhar was a party. It was further averred that though the lease granted by Monoranjan to defendant 1 comprised only 5 cottas of land in the south, the defendant was possessing, in addition to this about 6 cottas and 10 chittaks of land in the north as part of the tenancy without any right. The plaintiffs therefore prayed for khas possession of the entire property in possession of defendant 1.
6. The defence was that the mortgagor had a right to grant the lease in question in the ordinary course of management and the lease was binding on the mortgagees. With regard to the northern 6 cottas of land it was contended that there was a separate tenancy created by Monoranjan in favour of defendant's wife, Anandamoyee, and that the plaintiffs' suit was not maintainable without making her a party. It was further alleged that the defendant had, to the knowledge of the plaintiffs, spent considerable sums of money in improving the land and raising structures thereupon and that the plaintiffs' suit was barred by the rule of estoppel, and in any event the defendant was entitled to compensation. The trial Court negatived all these pleas and decreed the plaintiffs' suit. On appeal the judgment of the trial Judge was reversed and the suit dismissed. The plaintiffs have now come up in second appeal to this Court.
7. The learned lower appellate Court held that there was a separate tenancy created by Monoranjan in favour of the defendant's wife with regard to the 6 cottas and 10 chittaks of land on the north and as the defendant's wife was not made a party to the suit, the claim for eviction in respect of the northern portion of the suit land was not maintainable.
8. With regard to the southern 5 cottas the District Judge held that the lease granted by the mortgagor in favour of defendant 1 was valid in law and binding on the mortgagees. In the opinion of the District Judge Section 65A, T.P. Act, was not applicable to the facts of the present case as the mortgage was executed prior to 1928 and the lease was binding on the mortgagees as it was not destructive or permanently injurious to the security under the provisions of Section 66, T.P. Act. The propriety of the decision of the learned Judge on both these points has been challenged before us in this appeal.
9. Now, so far as the first point is concerned, we are of opinion that the appellant's contention must fail.
10. As regards the northern portion of the suit land, the defendant's specific case was that there was a separate tenancy in respect of the same created in favour of his wife. To substantiate this part of the case an Amalnama and certain dakhilas were produced. The trial Court did not place any reliance upon them, but the appellate Court held otherwise. We think that the District Judge was right in holding that whether or not there was a tenancy in favour of the wife of defendant 1 could not be properly determined unless the wife was made a party to the suit. When the defendant set up this specific plea in his written statement, it was up to the plaintiffs to apply for adding the defendant's wife a party defendant to the suit. As the defendant's wife is admittedly in possession of the northern portion of the disputed property the plaintiffs' suit in our opinion could not succeed unless she was made a party to the suit. The plaintiffs' claim for eviction with regard to the northern 6 cottas 10 chittaks must, therefore, fail.
11. As regards the second point, the decision of the Court below does not seem to us to be right. We may take it that Section 65A, T.P. Act, is not applicable to the facts of the present case and whether the lease is binding on the mortgagee or not is to be determined with reference to the law as it stood prior to the introduction of Section 65A, T.P. Act. Under the old law, it seems that different views were expressed by different Judges as regards the powers of the mortgagor to lease the mortgaged property. One line of authorities purported to lay down that a mortgagor is not entitled to grant a lease of the property which is the subject-matter of the mortgage without the concurrence of the mortgagee : vide Wazir Ali v. Moti Chand ('05) 2 All. L.J. 294; Macleod v. Kisson Bithal Singh ('06) 30 Bom. 250. This was obviously the view taken by the English Courts. It was pointed out by Sir Lawrence Jenkins in Balmnkund v. Matilal ('16) 3 A.I.R. 1916 Cal. 870 that a, simple mortgage in India unlike a legal mortgage in England does not arrest the mortgagor's power of lease in the ordinary course of management, and the mortgagor acts within his powers in creating a temporary lease which does not impair the value or impede the operation of the mortgage. The matter was considered elaborately by Mookerjee and Beachcroft JJ., in Madan Mohun Singh v. Raja Kishori ('17) 4 A.I.R. 1917 Cal. 222 and the law was laid down in the following manner:
The true position thus is that the mortgagor in possession may make a lease conformable to usage in the ordinary course of management, for instance, he may create a tenancy from year to year in the case of agricultural lands or from month to month in the case of houses. But it is not competent to the mortgagor to grant a lease on unusual terms or to alter the character of the land or to authorise its use in a manner or for a purpose different from the mode in which he himself had used it before he granted the mortgage.
12. The law enunciated by their Lordships in the above case was embodied later on In Section 65A, T.P. Act. It is argued on behalf of the respondent that the law laid down in the above case goes further than is warranted by the express language of Section 66, T.P. Act, and a lease would be binding upon the mortgagee if it is not destructive or permanently injurious to the property or if the security is not rendered insufficient thereby.
13. In our opinion even if we accept the view of the respondent we would hold that the lease in the present ease could not be binding on the mortgagee. The mortgagor might be within his rights to create a lease which is from month to month or from year to year as the case might be, but he cannot grant a permanent lease with a rent fixed in perpetuity. This amounts to an alienation of his right to increase the rent in future and is as good as the sale of the property itself. This is not sanctioned by the ordinary course of management as has been laid down by Sir Lawrence Jenkins in the case mentioned above nor is it warranted by the previous user of this particular property.
14. In the case before us Patal held the tenancy as a non-transferable tenant and his rent could certainly be increased in future. We do not find either in the old law or in the new any warrant for creating a perpetual lease with a rent fixed for ever although the value of the property might increase many times in future. There is no decision under the old law which held such lease to be binding on the mortgagee.
15. We are of opinion accordingly that the view taken by the lower appellate Court is not right and so far as the southern 5 cottas of land are concerned the plaintiffs' appeal should be allowed.
16. The result is that the appeal is allowed in part. The judgment and. decree of the lower appellate Court are modified and it is ordered that the plaintiffs do get a decree for eviction with regard to 5 cottas of land which is comprised in the lease created by Monoranjan in favour of defendant 1 on 23-9-1923. Defendant 1 will be allowed time till 20-9-1946, to remove the structures, failing which they may be removed through the executing Court. The claim for mesne profits is dismissed. The plaintiffs' suit will fail with regard to the northern 6 cottas 10 chittakas of land.
17. We make no order as to costs in this Court.