BABU SHEO SINGH Vs. BABU BIRBHADUR SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for redemption of a mortgage of a tenancy at fixed rates made by one Kandhaiagir in 1880. The plaintiff obtained from him a perpetual lease of the mortgage property in (sic), and in 1892, Kandhaiagir executed in favour of the plaintiff a sale-deed of his right to receive the rent reserved by the lease. It is by virtue of this transfer in his favour that the plaintiff seeks to redeem the mortgage.

(2.) The claim was resisted on two grounds: 1. that Kandhaiagir died without issue and, therefore, his tenancy came to an end and that the plaintiff has no right or interest in the property which would entitle him to seek redemption, and 2. that, under the covenant contained in the mortgage-deed executed by Kandhaiagir, the defendants are entitled to continue in possession of the mortgaged property on payment of rent at a rate mentioned in the mortgage-deed and that although the plaintiff may be entitled to redeem, he has no right to recover possession.

(3.) Both pleas were repelled by the Courts below which decreed the claim. The defendants have preferred this appeal and the pleas put forward in the lower Courts have been repeated in this Court.