1. This is an appeal on behalf of the plaintiff in an action for declaration of title to land, for declaration that certain entries in the Record of Rights are erroneous, for recovery of possession and, for incidental reliefs. The property originally belonged to the husband of the first defendant, who executed a mortgage in favour of the plaintiff on the 27th January 1886. The mortgagee sued to enforce his security on the 16th November 1898. The usual mortgage decree was made on the 20th February 1899. The property was sold in execution and was purchased by the decree-holder on the 19th September 1904. The sale was confirmed on the 22nd June 1905. The case for the plaintiff is that, during the pendency of the mortgage suit, the mortgagor settled a number of persons who are now defendants in this action on different portions of the land, and these persons later on had their names entered in the Record of Rights as tenants in occupation of the land. The plaintiff, therefore, prays for decoration of his title as purchaser at the mortgage sale and for ejectment of the defendants on declaration that they have acquired no valid interest in the disputed property. The Courts below have concurrently dismissed the suit. On behalf of the plaintiff, this decree of dismissal has been assailed on three grounds, namely, first, that Such of the defendants as took settlement after the commencement of the mortgage suit and before its termination were affected by the doctrine of lis pendens: secondly, that such of the defendants, if any, as took settlement before the commencement of the mortgage suit but after the grant of the mortgage have acquired no valid title as against the mortgagee and thirdly, that the Courts below have come to a conclusion, erroneous in law, upon the question of the true nature of the land; namely, whether it is kamat land as alleged by the plaintiff or raiyati land as alleged by the defendants.
2. In so far as the first ground is concerned, it is clear that such of the defendants as may be proved to have obtained settlement from the mortgagor after the commencement of ' the mortgage suit, are affected by the doctrine of lis pendens. Section 52 of the Transfer of Property Act provides in very comprehensive language that during the active prosecution in any Court, having authority in British India, of a contentious suit in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which maybe made therein, except under the authority of the Court and on such terms as it may impose. It cannot be disputed that the grant of a lease by the mortgagor is a transfer of an interest in immoveable property. It cannot also be disputed that when a mortgagor grants such a lease after the institution of the mortgage suit he, in any view, deals with the property in suit. If any authority is needed for an elementary proposition of this character, reference may be made to the cases of Debi Prasad v. Baldeo 18 A. 123 ; A.W.N. (1896) 13 ; 8 Ind. Dec. (N.S.) 788, Thakur Prasad v. Gaya Sahu 20 A. 349 ; A.W.N. (1898) 63 ; 9 Ind. Dec. (N.S.) 584 and Gaskell v. Durdin (1812) 2 Ball & B. 170. It has been contended, however, on behalf of the defendants-respondents that they are raiyats in occupation of the land and cannot Consequently be ejected in view of the decision of a Full Bench of this Court in the case of Binad Lal Pakrashi v. Kalu Pramanik 20 C. 708 ; 10 Ind. Dec. (N.S.) 477. In this case it was ruled that a raiyat who has been inducted into the land by a trespasser in possession and who has accepted settlement bona fide, acquires a right to hold the land within the meaning of Section 5 of the Bengal Tenancy Act. This principle has been applied to cases of agricultural tenants who have been settled on land by a middleman who holds for a limited term; and it has been ruled in Atal Rishi v. Lakshmi Narain Ghose 2 Ind. Cas. 417 ; 10 C.L.J. 55 that an agricultural tenancy so created continues in operation even after the expiry of the lease of the grantor. It was pointed, however, in the the case of Upendra Narain Bhattacharya v. Protab Chandra Pardhan 8 C.W.N. 320 ; 31 C. 703 that the principle enunciated in Binad Lal Pakrashi v. Kalu Pramanick 20 C. 708 ; 10 Ind. Dec. (N.S.) 477 is a great encroachment upon the ordinary rules of law and consequently should be applied with caution. Instances of cases where the Court has declined to extend the application of the doctrine in question will be found in Jonab Ali v. Rakibuddin Mallik 1 C.L.J. 303 ; 9 C.W.N. 571, Peary Mohun Mandal v. Radhika Mohun Hazra 5 C.L.J. 9 and Kazi Nawaz Khoda v. Surendra Nath De 5 C.L.J. 33 ; 34 C. 109 ; 11 C.W.N. 201. We are clearly of opinion that the principle should not be extended so as to affect the application of the doctrine of lis pendens, and Section 52 of the Transfer of Property Act cannot be frittered away by the application of the doctrine recognised in Binad Lal Pakrashi v. Kalu Pramanik 20 C. 708 ; 10 Ind. Dec. (N.S.) 477. The defendants, who obtained leases from the mortgagor after the institution of the mortgage suit, are consequently not entitled to resist the claim of the plaintiff.
3. In so far as the second ground is concerned, we have to consider the position of such of the defendants, if any, as obtained settlement from the mortgagor before the mortgage suit was instituted but after the execution of the mortgage. It has been broadly contended on behalf of the appellant that a lease granted by a mortgagor after the execution of the mortgage in no way binds the mortgagee, and in support of this view reliance has been placed upon the case of Wazir Ali v. Moti Chand 2 A.L.J. 294. It may be conceded, as was said by Lord Selborne in Corbett v. Plowden (1884) 25 Ch.D. 678 at p. 681 ; 54 L.J. Ch. 109 ; 60 L.T. 740 ; 32 W.R. 667, that if a mortgagor left in possession grants a lease without the concurrence of the mortgagee, (and for this purpose, it makes no difference whether it is an equitable-lease by an agreement under which possession is taken or a legal lease by actual demise), the lessee has a precarious title, inasmuch as although the lease is good as between himself and the mortgagor who granted it, the paramount title of the mortgagee may be asserted against both of them. This doctrine appears to have been recognised in the cases of Wazir Ali v. Moti Chand 2 A.L.J. 294, Chunni v. Thakur Das 1 A. 126 ; 1 Ind. Dec. (N.S.) 98 and Macleod v. Kissan 30 B. 250 at p. 269 ; 6 Bom. L.R. 995. In our opinion, it cannot be disputed that a person taking a lease from a mortgagor after the mortgage acquires an interest in the equity of redemption and can claim to redeem on that footing. But this principle, which was recognised in Radha Pershad Misser v. Monohur Das 6 C. 317 ; 7 C.L.R. 293 ; 3 Ind. Dec. (N.S.) 207, Kasumunnissa Bibee v. Nilratna Bose 8 C. 79 ; 9 C.L.R. 173 ; 10 C.L.R. 113 ; 4 Ind. Dec. (N.S.) 51, Radhabai v. Shamrav Vinayak 8 B. 168 ; 4 Ind. Dec. (N.S.) 485, Paya Matuthil Appu v. Kovamel Amina 19 M. 151 ; 5 M.L.J. 279 ; 6 Ind. Dec. (N.S.) 810 and Raghunandan Prasad v. Ambika Singh 29 A. 679 ; A.W.N. (1607) 227 ; 4 A.L.J. 703, does not support the extreme contention of either of the parties. The doctrine does not assist the appellant, because it does justify the inference that a lessee from the mortgagor acquires no interest whatever in the property demised to him, nor does it assist the respondent in his contention that a lease of this character is always operative against the mortgagee. The true point of view was indicated in the observation of Sir James Parke in Pope v. Biggs (1829) 9 B. & C. 245 at p. 258 ; 109 E.R. 91 ; 4 Man. & Ry. 193 ; 7 L.J.K.B. 246 ; 32 R.R. 665 that the mortgagor may be considered as acting in the nature of a bailiff or agent for the mortgagee. Consequently, if the mortgagor, after he has granted the mortgage, deals with the property in the usual course of management, the interest created by him may be rightly deemed operative against the mortgagee. An illustration of this view will be found in the case of Moreland v. Richardson (1857) 24 Beay. 33 ; 53 E.R. 269 ; 26 L.J. Ch. 690 ; 3 Jur. (N.S.) 1189 ; 5 W.R. 672 ; 116 R.R. 18, where a person took a mortgage of a chapel and burial ground. It was held that as the object of the burial ground is to grant rights of burial, this being the mode in which such property is dealt with, the mortgagee was not entitled to disturb the graves of those who had been buried on the land, while the mortgagor continued to hold it. The same principle was recognised in Banee Pershad v. Reet Bhunjun Singh 10 W.R. 325. As the case is very imperfectly reported, we have examined the record and ascertained the questions in controversy. The proprietor of an estate mortgaged it on the 12th March 1861. On the 7th July 1862 the mortgagor granted an ijara patta of the property for a term of ten years. The mortgagee subsequently sued the mortgagor alone, and got a decree; at the execution sale which followed, the property was sold on the 24th December 1863. The purchaser sued on the 12th March 1867 to eject the lessee, on the ground that as he had acquired the property in the condition in which it was when mortgaged the lease, which would otherwise run till the 7th July 1872, did not bind him. The Court of first instance overruled this contention as too broadly formulated, and held that as the mortgagor had in good faith granted the lease for a limited term on a fair and reasonable rent, the mortgagee or the purchaser in execution of his decree could not repudiate it, specially as the mortgage-deed did not prohibit the grant off temporary leases to middlemen or cultivators. On appeal, the District Judge affirmed this view and declined to accept the broad contention that leases of all descriptions granted by a mortgagor were void as against the mortgagee. On second appeal to this Court Jackson and Mitter, JJ., took substantially the same view. It cannot, however, be maintained, as was pointed out by Lord Justice Romer in Reynolds v. Ashby and Son Ltd. (1903) 1 K.B. 87 at p. 102 ; 72 L.J.K.B. 51 ; 51 W.R. 405 ; 87 L.T. 640 ; 19 T.L.R. 70, that the mortgagor has anything like a general authority to deal with or affect they mortgaged property during his possession thereof. 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. In the case before us, therefore, if there are any defendants who have obtained settlement from the mortgagor after the mortgage but before the commencement of the mortgage suit, they can resist the claim of the plaintiff only if they establish that the leases in their favour were granted on the usual terms in the ordinary course of management; such a plea, if established, and, it must not be overlooked, that the burden of proof in this matter is upon them, will furnish a complete answer to the claim of the plaintiff. We may observe in this connection that the plaintiff alleged that the land was kamat, that it had never before been let out to tenants but had always been cultivated by the proprietor by hired labourers or by his servants, and that the mortgagor designedly settled raiyats on the land with a view to prejudice, if possible, the position of the mortgagee. These allegations must be kept in view, in the determination of the question, whether the settlements with the defendants were made in the ordinary course of management of the estate. The second ground urged on behalf of the appellant must, therefore, prevail.
4. In so far as the third ground is concerned, it must be conceded that the judgment of the District Judge is open to criticism upon the question of the character of the disputed land. Section 120 of the Bengal Tenancy Act lays down rules for determination of private lands of proprietors, The first subsection formulates two tests to which a detailed reference is, for our present purposes, not necessary, because as the District Judge has found, the case has not been brought within either of the two clauses. The appellant contends, however, that the provisions of the second sub-section of Section 120 have been overlooked. That sub-section provides that in determining whether any land ought to be recorded as the proprietor's private land, the Revenue Officer (or the Civil Court, as the case may be) shall have regard to local custom and to the question whether the land was, before the second day of March 1883, specifically let as proprietor's private land, and to any other evidence that may be produced; but shall presume that land is not a proprietor's private land until the contrary is shown. The District Judge has referred to the absence of evidence of local custom, but he does not specifically consider whether there is any other evidence,' as mentioned in Sub-section 2 of Section 120. The question of the true character of the land must, therefore, be considered with reference to the terms of Sub-section (2) of Section 120 upon the evidence on the record. The third ground, consequently, prevails.
5. We may add that upon the question of the point, of time when each of the tenant defendants was settled on the land, the parties will be at liberty to adduce fresh evidence. Such evidence may be taken by the District Judge or taken by the Court of first instance under his direction and submitted to him with its finding thereon.
6. The result is that this appeal is allowed, the decree of the District Judge set aside, and the case remanded to him for re-consideration. The costs of this appeal will abide the result.