JANARDAN GOVIND MAHALE Vs. MHALAPPA VENKATESH SHETTI

JUDGEMENT

(1.) The plaintiff sued to recover possession of the land described in the plaint free from any rights or charges thereon, alleging that defendant No. 1 held the land in suit under a mulgeni lease, dated June 17, 1882; that under it the lessee was liable to pay the stipulated rent at a fixed time of the year; that the lease also stipulated that the lessee should enjoy the land without transferring it to anybody; that if he broke any of these conditions the lessee was under its terms liable to forfeit his leasehold rights; that Defendant No. 1 did not give the stipulated rent at the stipulated time; that Defendant No. 1 mortgaged the land to Defendant No. 2 on November 11, 1922; that he thus broke both the conditions and that, therefore, the plaintiff had got a right to recover possession of the land.

(2.) The first defendant contended that the stipulation against alienation was illegal. But that is obviously a point which cannot be relied upon by the first defendant.

(3.) We must take it, considering the terms of the lease, although it is not very clear whether the District Judge considered that the terms transfer or alienation include a simple mortgage, that the first defendant has transferred by mortgage his interest in the land to the second defendant, which would involve a forfeiture if the owner wished to exercise his rights under the lease.