ABBAS ALI SARKAR Vs. SALIMUDDIN SARKAR

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for recovery of possession on redemption. The subject-matter of the litigation is a non-transferable occupancy holding, which originally belonged to one Kamal Changa. On the 23th August 1906 the occupancy raiyat executed a mortgage of the holding by way of conditional sale to the present defendant. On the 14th December 1912 the mortgagor conveyed the holding to the plaintiff. The result was that as against the landlord the subject-matter of the transfer was extinguished and the plaintiff did not as against him acquire a valid title to the holding on the basis of his conveyance. The position of the mortgagee was also imperilled, because the mortgagor, so long as be retained the tenancy, would be held liable for the rent by the landlord, but as soon as he had parted with his interest in the holding, the landlord would be entitled to treat the tenancy as forfeited and would be competent to re-enter upon ejectment of the mortgagee in possession. The defendant apprehended this danger, entered into negotiations with the landlord and obtained a new lease from him on payment of a premium. Thereupon, on the 27th January 1916, the plaintiff instituted the present suit for redemption and for re-transfer to him of the occupancy holding which had been mortgaged to the defendant on the 26th August 1906. The answer of the defendant was that the subject matter of the mortgage was no longer in existence, that it had been extinguished when the tenantry was forfeited and that there was no properly in respect whereof the plaintiff could claim to exercise a right of redemption. The plaintiff contended that he was entitled to invoke (be aid of the doctrine of equity which was recognize d in the case of Keech v. Sandford (1726) 2 White and Tudor s Leading Cases in Equity 706 : Select Cas. Ch. 61 : 2 Eq. Cas. Abr. 741 : 22 E.R. 629, which furnished an illustration of a constructive trust arising upon renewal of a lease by a trustee in his own name and for his own benefit. The Court of first instance gave effect to this contention and made a decree for redemption. The District Judge has reversed that decision and has dismissed the suit.

(2.) On the present appeal, which was heard in the first instance by Mr. Justice Chatterjea and Mr. Justice Newbould, it was contended that the plaintiff was entitled to treat the new lease as taken for his benefit and consequently to claim redemption. The Court thereupon held that before the Question raised could be decided, it was necessary to have an express finding upon two points, namely, first, whether the original tenancy was subsisting when the defendant took settlement from the landlord or whether the landlord was aware of the sale to the plaintiff when be accepted rent from the defendant in the name of the original tenant and, secondly, whether the defendant obtained the settlement from the landlord by taking advantage of his position as mortgagee in possession.

(3.) Upon the first point the District Judge has held that the original tenancy was not subsisting when the defendant took settlement from the landlord and that the landlord was then not aware of the sale to the plaintiff. Upon the second point the District Judge has held that the defendant did not obtain settlement from the landlord by taking advantage of his position as mortgagee in possession and, that, on the other hand, the settlement with him was made on the usual terms, and he came in on exactly the same conditions as any other person applying for a settlement. The propriety of these conclusions has not been questioned in second appeal. But the appellant has urged that he is entitled to a decree for redemption, even though the questions remitted to the District Judge have been answered against him. We are of opinion that there is no foundation for this contention.