H R CHAMARIA AND COMPANY Vs. SONATON PAL

JUDGEMENT

(1.) This is an appeal on behalf of the principal "defendant H.R. Chamaria and" Company, who may shortly be described as Chamaria, against a judgment and decree of the Subordinate Judge, Second Court, Dacca, dated the 21 December, 1925. The suit as framed was on the ground that Chamaria was a tenant at will under one J.B. Sukeas who was the owner of the property in question. The plaintiff had purchased the right, title and interest of the legal representative of J.B. Sukeas in execution of a money decree on the 2nd May, 19l9. He was put into symbolical possession by virtue of his purchase on the 18 July, 1919. The purchase was made in the benami of his son named Bepin Behary Pal who was joined as defendant No. 2 in the suit. On the 4 August, 1919, the plaintiff served notice on Chamaria determining the tenancy under which chamaria was alleged to have held the property in question as from the end of August, 1919. The present suit was brought on the 17 September, 1919, and the claim was for rent at the rate of Rs. 600 per month from 2 May, to 31 August, 1919, and for damages at a certain rate, which it is unnecessary to mention, from the 1 September to 17 September, 1919. The plaint was subsequently amended by an application made on the 23 January, 1925, asking for mesne profits or damages up to the date of delivery of possession. By this amendment the original valuation of the suit which was Rs. 10,000 odd was increased to Rs. 80,000 odd. The defendant objected to the application for amendment which was overruled by the lower Court. The defendant's main defence was that he was never a tenant of the land under the plaintiff or his predecessor in interest, and the plaintiff has no right to maintain the suit against him. His case was that one J.C. Galstaun held an equitable mortgage or as it may be properly described as a mortgage by deposit of title-deeds, which was effected in the town of Calcutta under Section 59 of the Transfer of Property Act by J.B. Sukeas; and that Galstaun Wis in possession of the property in suit along with other properties as a mortgagee and while in such possession Galstaun let out the property at first to a brother of J.B. Sukeas and then to the defendant Chamaria at a rent of Rs. 600 per month. But sometime in April, 1918, an agreement was entered into between Galstaun and Chamaria that Chamaria would purchase the property in dispute for Rs. 85,000 and that he would lave to pay no rent but would have to pay interest on the purchase-money agreed to between them. The sale could not be effected because Galstaun had no right to effect a sale of the property at the time. But the stipulation was that Galstaun would either take the permission of the Court to sell the property on behalf of the infant heir of J.B. Sukeas or he Would himself effect the sale after purchasing the property in execution of the decree on his mortgage which he intended to have On these pleadings several issues were framed in the lower Court. The main questions are covered by issues Nos. 3, 7 and 11. Issue Nov 3 was "Is there any relation Ship of landlord and tenant between the plaintiff and the defendant?" Issue No. 7 was "Was the plaintiff aware of the equitable mortgage in favour of J.C. Galstaun at the time when he purchased the property in suit? If so, can he get Mas possession without redeeming plaintiff's mortgage?" The 11 issue was. "Whether Mr. J.C. Galstaun is mortgagee in suit. If so, whether the plaintiff is entitled to recover any amount by way of damages?" It should be stated here that the plaintiff did not at the commencement admit the mortgage of Galstaun. When the suit was brought by Galstaun on his mortgage the present plaintiff was joined as a defendant as he ought to have been joined as a purchaser of a portion of the equity of redemption. Galstaun's suit on his mortgage was brought on the 14 of May, 1919, four months prior to the present suit by the plaintiff. The plaintiff disputed the mortgage and in that suit he took up a plea that Galstaun having got into possession of the property and having realised the profits he was bound to account for the receipts and those must be debited against the debt if any was found due to Galstaun. That suit was decided in the trial Court on the 23 September, 1921. There was an appeal against that decision and this Court modified the decree of the Subordinate Judge by its judgment dated the 23 rd January, 1924. I shall speak later On about this judgment. The judgment and decree of the High Court were affirmed by the Judicial Committee in January, 1927.

(2.) In the present case before the Subordinate Judge the trial proceeded upon the ground that Galstaun had a mortgage on the property in question. The sole question upon which the parties seem to have been in controversy was whether Galstaun was ever in possession of the property in question as a mortgagee or in other words whether Galstaun's position was that of a mortgagee in possession. The Subordinate Judge found as it was found in the previous litigation that the purchase of the plaintiff was with notice of Galstaun's mortgage. The Subordinate Judge found in the present case in deciding issue No. 7 as stated above that Galstaun took possession of the property as guardian of the infant son of J.B. Sukeas and did not take possession as a mortgagee. That being so, he held with regard to issue No. 7 that the brother of J.B. Sukeas Was a tenant of Owen Sukeas, the infant son of the original mortgagor, when Galstaun let out the property to him and that Chamaria was similarly a tenant under Owen Sukeas when Chamaria was let into possession by Galstaun in his capacity of guardian of Owen Sukeas, In that view it was held that the plaintiff as a purchaser of the right, title and interest of Owen Sukeas stepped, into his shoes and thus Chamaria became a tenant under the plaintiff and that tenancy was terminated at the end of August, 1919, by notice to quit which was served by the plaintiff upon Chamaria and upon that basis the plaintiff was entitled to a decree for rent for the period of the tenancy and also for damages by way of mesne profits till the date of delivery of possession. The property, however, was sold in execution of the mortgage-decree obtained by Galstaun on the 23 October, 1925, and purchased by himself. The value fetched for the property at the execution sale was far below the amount of the mortgage-decree. By reason of that sale no decree could have been made by the Subordinate Judge for ejectment of the defendant as the plaintiff's title to the property ceased to exist by virtue of that sale. But he made a decree for damages up to that date and the total amount of the decree made by the Subordinate Judge, who modified the claim for damages made by the plaintiff to a considerable extent, was Rs. 46,660. The defendant Chamaria has appealed to this Court.

(3.) The first ground taken on behalf of the appellant is that the amendment asked for by the plaintiff should not have been allowed by the lower Court. We do not think that there is any substance in this objection. If the plaintiff had not specified in his plaint that he asked for mesne profits till the date of the suit, that is to say, till the 17 of September, 1919, the Court might have been in a position to make a decree for mesne profits up to the date of delivery of possession. But if the suit is otherwise properly framed there was no harm in allowing the plaintiff to amend his plaint by striking out from his prayer for recovery of mesne profits the words "up to the date of the suit" and by substituting in their place the words "up to the date of delivery of possession."