SAJEDAR RAHAMAN Vs. RAKHAL CHANDRA ROY

JUDGEMENT

(1.) THIS appeal arises out of a suit for enforcement of a mortgage instituted by the plaintiffs with regard to a fractional share of a holding which originally belonged to the defendants Nos. 1 and 2. The defendant No. 3 is the landlord of the holding and he purchased the interest of the principal defendants Nos. 1 and 2 the mortgagors in the entire holding, in execution of a decree for money. The plaintiffs ask for a mortgage-decree against all the defendants on the allegation that the defendant No.3 is the purchaser of the equity of redemption, and they say that they are entitled to have a decree in his presence. The defendant No. 3 claims a title paramount and ordinarily, he might have been dismissed from the suit on that ground. But the question has been debated in both the Courts below whether the defendant No. 3 has any interest in redeeming the property and, as he has not asked even in this Court to be dismissed from the suit, we do not think that it would be proper at this stage to dismiss him from the suit altogether. The question then resolves itself into this : Whether the plaintiffs are entitled to enforce their mortgage as against the mortgaged property which, as has already been stated, comprises part of a non-transferable occupancy holding in the hands of the defendant No. 3. The defendant No. 3, although he is the landlord, has purchased the right, title and interest, only of the mortgagors and has purchased the property subject to all the liabilities enforceable against the mortgagors. A mortgage of a non-transferable holding is not invalid and does not confer any right on the landlord to have such mortgage declared invalid or not binding on the mortgagors. Having acquired the interest of the mortgagors, it seems to us that the defendant No. 3 is bound by the mortgage, and that the decree made by the lower appellate Court is right. The appeal, is, therefore, dismissed with costs.