BANSI LAL BHAGAT Vs. DURGA PRASHAD

JUDGEMENT

(1.) The facts of this case are somewhat complicated; but they are fully set out in the judgment under appeal and we need not repeat them. The equities between the parties have to be ascertained on the application of principles which regulate the rights of sub-mortgagees.

(2.) The plaintiffs are sub-mortgagees with respect to property No. 4 mentioned in the schedule to the plaint. The property belonged to Durga Prasad and he mortgaged it first to one Mohan Lal. Then he gave a zurpeshgi lease for Rs. 2,000 to defendants Nos. 1 and 4 and the father of the defendants Nos. 2 and 3. The mortgage money was Rs. 2,000 and the mortgagees were to remain in possession under the covenants in the deed and pay as huq aziri a certain sum to Durga Prasad. Mohan Lal's debt was paid off by the mortgagees. In order to pay off the debt due to Mohan Lal and for other purposes, the mortgagees sub- mortgaged property No. 4 as well as three other properties of theirs to the plaintiffs.

(3.) After the execution of the sub-mortgage, the mortgagees failed to pay the huq aziri to Durga Prasad. Durga Prasad instituted a suit for rent, though the suit might be dealt with as a suit on a contract between the parties and not strictly as suit for rent. He got a decree and sold the interest of the mortgagees. It is not clear what was the precise interest which was sold whether it was the lease-hold interest or the entire zurpeshgi interest. It is unnecessary, however, to discriminate between interest of the mortgagees and their interest as lessees, because the two interests were combined and the sub-mortgagees, the present plaintiffs, not having been parties to the rent suit or suits and their sub-mortgage not having been dealt with under the procedure laid down under Section 167 of the Bengal Tenancy Act, the sub- mortgage must be considered as subsisting notwithstanding the sale of the lessee's interest. The sub-mortgagees had either the right to redeem the interest which was acquired by Durga Prasad or to sell the interest of their mortgagors, the original mortgagees. The decree in such a case would be a decree for sale of property No. 4 for Rs. 2,000 less any amount that might be recovered by sale of other properties and less such money as was payable by the mortgagees to Durga Prasad as hug aziri with liberty to Durga Prasad to redeem property No. 4 by paying off the amount thus found. The Subordinate Judge did not pass a decree exactly in that form. He, however, passed a decree which satisfied the plaintiffs but Durga Prasad was not satisfied.