Lawrence Jenkins, C.J.
1. The contest of this appeal is as to the respective rights of a purchaser under a mortgage-decree and a lease-holder in possession who was not a party to the mortgage suit. The plaintiff in this suit is the purchaser and the contesting defendant is the lease-holder. The plaintiff prays for possession or in the alternative that the lease-holder be directed to redeem.
2. The other defendants are the mortgagors and former claimants under mortgages or their representatives. The two mortgagors are Debendra Narayan, who is represented by defendant No. 3, and his brother Upendra Narain defendant No. 4. These brothers were the sons of Joy Narain Saha, a Hindu governed by the Bengal School of Law who died before the mortgages to which I will next refer. On his death each of these brothers became entitled to 1/4th share in the family property, their uncle, with whom we have no concern, being entitled to the other moiety.
3. On the 3rd of May 1894, Debendra mortgaged his 1/4th of the property in suit to the defendant Srimati Isvari Debi and Srimati Bhuban Mohini Debi, the mother of defendants Nos. 7 and 8, to secure Rs. 400 with interest at 2 per cent, per mensem with monthly rests.
4. On the 10th of January 1896, Upendra mortgaged his 1/4th share in the property to Panchanan Prosad Kundu, who is now represented by defendants Nos. 10 and 11, to secure Rs. 1,900 with interest.
5. On the 13th June 1898, Debendra and Upendra mortgaged the property in suit to Upendra Nath Mukherjee, father of defendant No. 2, to secure Rs. 5,000 with interest.
6. On the 3rd of October 1898, the two brothers again mortgaged the property to Upendra Nath Mookerjee to secure Rs. 15,000 with interest.
7. These are the mortgages with which we are concerned in this suit and 1 now pass on to describe what was done with them.
8. On the 26th of May 1900, a suit, No. 41 of that year, was brought on Debendra's first mortgage, and on the 8th of July 1901, a decree for sale was passed. The 1/4th share of the property in suit was bought at the Court sale by Indra Narayan Pal, defendant No. 9.
9. In 1904 Suit No. 57 of that year was instituted by Upendra Nath Mukherjee on his two mortgages and he joined as defendants Debendra and Upendra and their mother, the two ladies who were mortgagees under Deben's 1st mortgage, Indra Narain Pal, the mortgagee under Upendra's 1st mortgage, and P.N. Mallik to whom this last mortgage had been transferred on the 22nd October 1900.
10. In 1905 Suit No. 55 of that year was instituted by P.N. Mallik on Upendra's 1st mortgage and the defendants to that suit were Upendra, Debendra and their mother, the Kundus who had transferred to P.N. Mallik the mortgage then in suit, Upendra Nath Mukherjee, the predecessor of the present contesting defendant and others who need not be particularised.
11. On the 30th June 1905, a decree was passed in Suit No. 57 of 1904 brought by Upendra Nath Mukherjee and thereby a sale of the mortgaged properties was directed free from all incumbrances, and it was ordered that Indra Narain Pal should get payment first out of 1/4th of the sale-proceeds of the sum of Rs. 2, 178 2-6, due on account of the mortgage-bond dated the 3rd May 1894, with interest at the rate of the bond up to the 12th August 1901 and certain other sums making a total of Rs. 2,305-7-0. Similarly Rs. 7,670 odd was directed to be paid in respect of the mortgage of January 10th, 1896. There then followed a power to redeem.
12. On the 23rd May 1906, a decree in the suit was passed directing a sale subject to the mokarari maurasi right and the pattas there described. And it was noted that Upendra Nath Mukherjee had obtained a decree in Suit No. 57 of 1904.
13. On the 17th June 1907, the property in suit was put up to sale in Suit No. 7 of 1901 and was bought by the plaintiff Balmakunda Ruiya at Rs. 30,000. A deposit of Rs. 7,500 was paid and after the balance had been paid, the sale was confirmed.
14. Difficulties as to possession followed with the usual sequel of criminal proceeding and ultimately on February 23rd, 1911, this suit was instituted. The suit was heard by the Subordinate Judge, 2nd Court, of Hooghly.
15. By way of defence the lessee, the contesting defendant, relied on certain leases which, according to them, either vested in him a title paramount or had become binding on the plaintiffs by recognition or otherwise. The lessee also claimed that the suit was barred against him by, limitation, and advanced other defences.
16. The result of the trial was that the Sub-Judge decided in effect as to the bulk of the property that the lessee would only resist the plaintiffs' claim for possession by redeeming the property on the terms stated in the Court's decree.
17. According to those terms the lessee had to pay Rs. 2,172-14-0 in redemption of the 1st mortgage and Rs. 6,780-ll-2 l/2 in redemption of the 2nd mortgage, but the plaintiffs' claim for interest after the confirmation of the sale under the decree in Suit No. 57 of 1904 was dismissed.
18. Neither party was satisfied with this decree and so the plaintiffs have appealed and the defendant has filed cross-objections. To appreciate the points at issue, it is necessary to observe the dates of the leases on which the defendant lessee relies. Some purport to have been transferred and the rest have been granted direct to the lessee's- predecessor. Those said to have been transferred may be eliminated from discussion, for the contesting parties have come to the following arrangement regarding them: It is agreed between Mr. B.C. Mitter on behalf of the appellants and Sir Rash Behari Ghosh on behalf of the respondent that the tenancies to which the kabalas of 14th March 1888 and 9th November 1903 relate came into existence prior to the mortgage of 3rd May 1894 and that no notice to determine the same has been given, but this Court is not to affirm but to leave open whether those leases are maurasi mokarari or not, so that if necessary that point may be determined in subsequent litigation.' As a result of this the decision of the Subordinate Judge dismissing the suit in relation to the property comprised in these tenancies is to be confirmed on this ground, but on this ground alone. The direct leases are dated the 27th of October 1894 and the 17th of January 1895 and two, the 22nd of November 1897. Thus it will be seen that all are subsequent to the 1st mortgage and the last two are subsequent to the 2nd mortgage. But no cross-objection has been preferred as to these last two, so that the only contest is as to whether the 1st two prevail over the plaintiff's right to possession. These leases are each for 50 years with an option of renewal for ten years and it has not been, nor could it be, maintained that the leases did not at least entitle the lessee to redeem. But the lessee maintains that he is entitled to retain possession without redeeming the plaintiffs.
19. The relative positions of a mortgagee and of a tenant under a tenancy created by the mortgagor after a legal mortgage are well settled in England, but it would be a mistake to apply these English rules to the relations resulting from and Indian simple mortgage. The rule of Keech v. Hall (1778) 1 Dougl. 21; 1 Sm. L.C. 511; 99 E.R., the leading English case, is one of conveyancing but under a simple mortgage, the mortgagor does not part with possession, and the right a mortgagee is merely to cause the mortgaged property to be sold for the payment of his debt,
20. And so we find that a simple mortgage does not as a matter of conveyancing arrest the mortgagor's power of leasing in the ordinary course of management. Thus in Banee Pershad v. Reet Bhunjun Singh 10 W.R. 325, it was decided, and the propriety of the decision has never been questioned, that as long as nothing took place which impaired the value or impeded the operation of the mortgage, the mortgagor in creating a temporary lease acted within his powers. This aspect of the case was not developed as fully as it might have been at the trial. It has not been shown that the first mortgage was impaired in value or impeded in operation by the first two leases. There is no evidence as to what class of lease is ordinarily granted in the case of properties such as that in suit, and the only restriction on leasing mentioned in the mortgage is against the granting of a Kayemi maurasi. The impugned leases do not come within that description.
21. We learn from the Commissioner's report that the disputed land is situated in the town of Salkia adjoining the Bandaghat and appertains to a very thickly populated and important commercial quarter of the town, lying as it does exactly on the river Hooghly... Over the disputed land and that on the north of it there exist the jute press and godowns of the defendant.' And so the lease involved building operations. At the same time the first mortgage was only for Rs. 400, and the view of the Subordinate Judge was that it could not be said that the mortgage security even of the 1st and 2nd mortgages became insufficient by the execution of these leases. Nor can it be urged that the plaintiffs have been taken by surprise for the lower Court has held that the purchaser bought with notice of the leases and no attempt has been made to the impugn the correctness of this finding.
22. Moreover no complaint was made by the 1st mortgagees or by Indra Narain who purchased under their decree.
23. On the contrary, Indra Narain under whom the plaintiffs claim so far as they rest on the first mortgage, recognised and adopted the leases in the most unequivocal manner, for he brought a suit expressly on them and obtained a decree.
24. This suit was instituted in the Court of the Munsif at Howrah in 1907 and thereby rent was claimed and recovered on the registered Kabuliats of the 27th October 1894 and the 17th January 1895. And before this rent was also paid to the Receiver appointed in Suit No. 57 of 1904, the suit in which the plaintiffs' purchase was made. In view of these facts I do not think the two leases of the 27th October 1894 and the 17th January 1895 can be treated by the plaintiff as inoperative, and I hold that the lessee is under no obligation to redeem. Mr. B.C. Mitter at one time thought that the lessee had made an admission as to boundaries favourable to him, but in this he was manifestly mistaken.
25. The result then is that the decree of the Sub-Judge will stand as to the plots comprised in the mortgage of the 16th January 1896, for as to these no appeal has been preferred, but it will be subject to a modification to which the plaintiffs assent, as by an oversight the decree has been so expressed as to give rise to possible error. The decree as drawn directs that the plaintiffs will be entitled to get a decree for foreclosure against defendant No. 1 with respect to the land covered by the third and fourth leases, dated the 22nd November 1897 and the 22nd November 1897 respectively. This must be altered by substituting the words 'covered by the mortgage of the 16th of January 1896.' In view of the statement made on behalf of the lessee that he does not propose to redeem the mortgage of the 16th January 1896, it becomes unnecessary to consider whether the Subordinate Judge erred in disallowing interest up to the date of the suit. There will he a statement to that effect embodied in the decree.
26. The result then is that the plaintiffs' claim is dismissed as to the plots comprised in the tenancies to which the kabalas of 14th March 1888 and 9th November 1903 relate, that is to say, to plots measuring 3 cottas and 7 cottas 6 chhittaks and in this connection there will be embodied in the decree the terms to which the parties have agreed.
27. The plaintiffs' claim will also be dismissed as to the plots comprised in the leases dated the 27th October 1894 and 17th January 1895 and measuring 7 cottas and 2 bighas and 8 cottas respectively.
28. The rest of the Subordinate Judge's decree will stand with the variation which I have indicated. The appellants must pay the defendant No. 1 half his costs of this appeal and two gold mohurs as hearing fee to each of the defendants Nos. 2 and 15.
29. I agree.