PIARELAL KHUMAN Vs. BHAGWATI PRASAD KANHAYALAL

JUDGEMENT

(1.) THIS judgment governs the disposal of twelve Letters Patent Appeals Nos. 8, 9, 11,12, 13, 14, 15, 17, 19, 20, 21 and 22 of 1963 which have all been filed against the order of Sheodayal, J. allowing the several appeals filed by the respondents.

(2.) IN order to appreciate the points raised in support of the appeals, it is necessary to state the facts in some detail. Chaturbhuj and Sewaram executed two simple mortgage deeds on 4-9-1924 and 30-6-1927 in favour of Pyarelal, Ramlal and motilal mortgaging their proprietary rights in village Jerwans along with the homefarm (sir and khudkasht) lands. In the second mortgage bond, they had agreed to the condition that they would not lease out the homefarm lands. In spite of this agreement, they leased out the khudkasht lands to several persons. The mortgagors and mortgagees have been succeeded by their legal representatives but it is not necessary to give details. We shall refer to the mortgagees as creditors, the mortgagors as principal judgment debtors and the lessees as lesseejudgment-debtors.

(3.) THE creditors instituted Civil Suit No. 5-A of 1943 in the Court of Additional district Judge, Sagar, on the basis of the two mortgage deeds impleading the debtors and the lessees of khudkasht lands. On 9-4-1946, a preliminary decree was passed for sale of the properties including the khudkasht lands; but it was stated in the decree that the lessees had no right to redeem and were discharged. One of the lessees went up in appeal on the ground that the lands could be validly leased out by the proprietors in the course of village management but this contention was negatived on account of the express covenant to the contrary in the second mortgage deed. Another contention that the lands were protected under Section 43 of the M. P. Abolition of Proprietary Rights Act (hereinafter referred to as "the Abolition Act") was also rejected.