MUKTAKESHI DASI Vs. PULIN BEHARI SINGH

JUDGEMENT

(1.) A deceased occupancy raiyat named Becharam Gossain mortgaged his holding of 7 1/2 bighas to the plaintiff in Asar 1309. He subsequently died leaving one brother Bonomali who has also died without leaving any heir and the landlord has taken over the holding. The plaintiff sued the landlord, defendant No. 2, and two other persons Nobin Chundra Gossain, defendant No. 1, and his wife defendant No. 3 who, he alleges, are in occupation of the land. It is not contended that they are in any way the heirs of Becharam but defendant No. 1 who appeared said that his wife defendant No. 3 got the land as a gift from Becharam. The Munsif in the first Court disbelieved the story of gift and found there was cause of action against defendant No. 1 as he was in possession. He also found that the vesting of a jote in the landlord on failure of the heirs of a deceased tenant cannot destroy a subsisting mortgage lien. He accordingly gave the plaintiff a mortgage decree.

(2.) In appeal the learned Subordinate Judge found that defendants Nos. I and 3 had no subsisting interest in the land and against this finding nothing has been urged before us. As regards the vesting of the holding in the landlord, defendant No. 2, ho held that under Section 26, Bengal Tenancy Act, there is no saving clause respecting the right of third persons as sub- lessees or mortgagees and the landlord, defendant No. 2, therefore did not take the holding subject to plaintiff's mortgage.

(3.) As regards the question of transferability he rightly held that it does not arise in his view of the case though he decided in fact against the custom as regards the jote in suit.