NIADER SINGH Vs. RAM CHANDER

JUDGEMENT

(1.) This is a plaintiffs appeal and arises out of a suit brought by them against the defendants-respondents for a declaration that the lease executed by Harbans Singh, defendant 3, in favour of Ram Chandar and Ram Das, defendants 1 and 2 and Bakhtawar, brother of defendants 1 and 2, on 5 September 1917, in respect of the plots in mouza Kharkhanda described in the plaint was ineffectual and not binding on the plaintiffs. Hairbans Singh, defendant 3, bad executed a mortgage of the property in village Kharkhanda and other property in other villages in favour of Kanhaiya Lal on 5 September 1902, Harbans Singh executed subsequently another mortgage in favour of the plaintiffs on 26 February 1913. After the two mortgages Harbans Singh executed a permanent lease of 7 bighas and 18 biswas of land in village Kharkhanda in favour of Ram Chander and Ram Das, defendants 1 and 2. The heirs of Kanhaiya Lal who is dead brought a suit and obtained decree on the basis of their mortgage. The mortgaged property in village Kharkharada was put up for auction and sold, and purchased by the plaintiffs for Rupees 20,000. For the balance of the mortgage money the other mortgaged property which was in other villages was. sold and after satisfying the balance, a surplus of about Rs. 1,309 was left. After the decree of the heirs of Kanhaiya Lal, the plaintiffs also obtained a decree on the basis of their mortgage on account of which they realised Rs. 1,049 out of the surplus-money. The plaintiffs have now brought this suit for a declaration that the lease referred to above was ineffective, void and not binding on them. The defendants contended that the lease was valid, that its terms were fair and reasonable, that there was no ground for setting it aside, that the plaintiffs were only the auction-purchasers, and had no subsisting rights of the mortgagees and that the lease was binding on them.

(2.) The trial Court framed an issue as regards the reasonableness of the rent and recorded a finding that the rent was not low but was reasonable. The plaintiffs own evidence shows that the rent prevalent in the village was Rs. 7 or Rs. 8 per bigha and even less. The rent of the lease in suit worked out at Rs. 9-8-0 per bigha. No collusion or fraud as regards the lease was proved. The trial Court dismissed the suit. The decree of the trial Court was confirmed in appeal by the learned Subordinate Judge of Meerut. The only question in this appeal is how far the lease is valid and binding on the plaintiffs. The mortgage was simple and the mortgagor remained in possession of the mortgaged property. In the case of non-possessory mortgage a mortgagor remains the owner of the property with every right to manage his property in the manner he thinks proper and suitable. There was some doubt as regards the mortgagor's power to grant leases after having made non- possessory mortgages but this doubt has been removed, now by Section 65(a), T.P. Act. Section 65(a), T.P. Act, lays down that: Subject to the provisions of Sub-section (2), a. mortgagor while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee.

(3.) Sub-Clause (a) lays down that: Every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage.