KALURAM Vs. MOHAN SINGH

JUDGEMENT

(1.) THE plaintiffs, who are mortgagees of an absolute occupancy holding and other property, sued the tenant and the landlord for foreclosure of the mortgage. The landlord was not a necessary party to the suit on the mortgage as he claimed to be in possession by a paramount title and pleaded that he was not bound by the mortgage in favour of the plaintiffs appellants. However, the plaintiffs chose to proceed against him and sought and obtained a decision in the trial Court as to their mutual rights. Under these circumstances it would be too late to urge that the landlord should have been discharged from the suit, and the plaintiffs and the landlord here express their willingness to accept adjudication of their mutual rights in this suit.

(2.) THE lower appellate Court has refused to pass a decree for foreclosure of the absolute, occupancy holding and. has dismissed the suit against the landlord. A decree has been passed against the tenant for foreclosure of property other than the holding included in the mortgage, The position as between the plaintiffs appellants who are the mortgagees and defendant respondent 1, the landlord, is this. The plaintiffs hold a mortgage of an absolute occupancy holding executed by the tenant in 1919 before the new Tenancy Act came into force. The landlord is in possession under a surrender deed executed in 1924 after that Act came into force. The plaintiffs contend that the landlord is bound by the mortgage and unless he redeems the mortgage that holding should be foreclosed. The plaintiffs have therefore to prove that their mortgage is enforceable against the landlord. The mortgage to which Section 41, Tenancy Act of 1898 applied, was effected without notice under 01. (4) of that section, and was admittedly, voidable at his instance. It is difficult to see how the plaintiffs can seek to enforce such a mortgage against the landlord in possession under a bona fide surrender.

(3.) THE appeal fails and is dismissed with costs.