BENOY KRISHNA GAIN Vs. FANINDRA NATH ROY CHOUDHURI

JUDGEMENT

(1.) This is an appeal by the plaintiffs against a decision of the Additional District Judge of the 24-Parganas reversing a decision of the Subordinate Judge of the Second Court of that place.

(2.) The suit out of which this appeal arises is a suit to recover possession from a tenant whose lease has expired. There were four defendants in the suit, Defendant No. 1 being the lessee of the land who became insolvent in the year 1917. Defendant No. 2 is the Receiver appointed in the insolvency. Defendant No. 3 is a mortgagee in possession from the lessee and Defendant No. 4 is a sub-leseee under the mortgagee. Defendants Nos. 1 and 2 have taken no part in the suit and the contest has been between the plaintiffs on the one side and the Defendants Nos. 3 and 4 on the other. The lease is dated the 23 October 1906. It was granted by three persons Brojeswari, Kebal Krishna and Narayan Chandra who purported to be shebaits of a certain deity. Subsequently, there was a suit for partition brought by Narayan who alleged that the property was secular. It was hold in that suit (No. 51 of 1906) that the property was secular but was charged with performance of the deb sheba of the idol and that the property was liable to be partitioned. On the partition, the land which was subject to the lease fell to the. share of Kebal Krishna and his interest has subsequently been transferred to the present plaintiffs. The lessee, on the 10 August 1909, mortgaged the property to Defendant No. 3. The lease was for a period of five years from the 23 October 1906, but under the provisions of Clause (8) of the lease it was to be renewed for a further period of five years on the same terms and conditions. Accordingly, the lease expired on the 22 October, 1916. But the contention put forward by the mortgagee is that by virtue of the provisions of Clause (13) of the lease it is either renewable for a further period or that the lessee is entitled to a new lease on the expiry of the old one on the terms set out in Clause (13) of the lease and that is the real contest between the parties. The difficulty, however, in the way of the mortgagee is that he is not an assignee of the term created by the lease and, accordingly, there is no privity of contract between him and the lessor. Accordingly, he is prima facie not entitled to enforce the so-called covenant for renewal which is contained in Clause (13) of the lease. It has, however, been argued before us on behalf of the mortgages that by virtue of the terms of the mortgage itself he is in a position to enforce renewal of the lease under the provisions of Clause (13) thereof. I confess that I have found great difficulty in following the argument of the learned advocate upon this point and it certainly did not carry conviction to me. It appears to me that the only way under which the argument could be put is that by virtue of Clause (3) of the mortgage to which we have been referred the mortgagee was constituted the agent or attorney of the lessee so as to obtain either renewal of the lease or a new lease under the provisions of Clause (13). It is, accordingly, necessary to examine the provisions of Clause (13) of the lease and also the provisions of Clause (3) of the mortgage.

(3.) Now Clause (13) provides amongst other things that the lessee is bound to deliver over possession of the land to the lessor after the expiry of the terms fixed thereby. Then conies a further proviso in Clause (13) that if the lessee undertakes to pay rent according to the rates and on the terms and conditions under which adjoining lands are held he is to remain in possession of the lands included in the kabuliyat and shall be bound to execute a kabuliyat on those terms. This is a somewhat vague provision; no doubt it may be possible to ascertain the rent of adjoining lands so that this may be fixed but the period of the new lease is somewhat difficult to gather from the terms of Clause (13), and whether it would have been possible to ascertain the prevailing rate and term under which the adjoining lands were let is a matter upon which I feel considerable doubt. But it is not necessary, I think, to pursue this question further. 3. I now turn to Clause (3) of the mortgage upon which the mortgagee mainly relies. We have read this clause several times and it has been read to us both in part and as a whole more than once, and the conclusion I have come to is that all that is meant by Clause (3) of the mortgage is that it empowers the mortgagee to let out or rather sublet the land during the time he was in possession as the mortgagor himself might have done. Reliance was placed on the concluding words of the clause which provide that the mortgagee shall be entitled to do all acts by using the name of the mortgagor and without reference of him and it was said that by virtue of these words the mortgagee was now entitled to call for a renewal of the lease under the provisions of Clause (13) or for a new lease under the provisions of that clause. But, as I have already stated, I think that upon the true construction of Clause (3) nothing of the kind is intended by the parties and all that Clause (3) means is that the mortgagee is to be entitled to sublet the land so long as he remains in possession. It is impossible, therefore, I think, to hold that upon the construction of Clause (3) of the mortgage the mortgagee is an agent or attorney of the lessee to demand from the landlords renewal of the lease or a new lease under the provisions of Clause (13). If, this is so, then, clearly the mortgagee has no right to renew; for, as I have already stated, the mortgage itself leaves the property in the mortgagor and there is only a charge in favour of the mortgagee, that is to say, there is no assignment of the lease which would entitle the mortgagee to the benefits of the covenants contained in the lease which would run, so far as Clause (13) is concerned, with the land in equity if not in law.