RUSTOMJI DORABJI Vs. KESHAVJI DAMJI

JUDGEMENT

(1.) This is an ejectment suit brought by a purchaser from the mortgagees of the suit property against the defendant, who claims under an agreement for a lease executed by the mortgagors, after the data of the mortgage, but without the consent of the mortgagees. After the suit was brought, the defendant gave up possession of the suit property, but he contends that he is entitled to set off against the compensation claimed by the plaintiff a sum of Rs. 2,400 which he has deposited with his landlords, the mortgagors, under his tenancy agreement.

(2.) As regards the title to the property, we are dealing with leasehold land held under a lease of April 19, 1920, for a term of fifteen years from January 1, 1920. That lease included a cinema theatre and certain other lands. It is a portion of the other lands which is the subject of this suit, and I shall refer to that portion as the suit property. On June 29, 1920, the lessees assigned their interest to one Francisco Battistessa and others for the residue of the said term Then, by a mortgage of March 3, 1921 Francisco Battistessa and others mortgaged the property to Rustomji Cawasji Mehta and his wife Aimai to secure in all Rs. 50,000 and interest. This mortgage, which is Ex. B, was in the English form and was by assignment. It, accordingly, contained an express assignment of the whole of the mortgaged premises to the mortgagees for the residue of the head term of fifteen years. It also gave an express power of sale to the mortgagees in certain events. There were, also the usual covenants for title on the part of the mortgagors including a covenant for further assurance by the mortgagors and all other persons lawfully or equitably claiming any estate right or interest in or to the mortgaged premises or any part thereof.

(3.) It is agreed by counsel that there was no express power of leasing in the mortgagors or to the mortgagees.