MAROTI RAO Vs. TULSA BAI

JUDGEMENT

(1.) THIS case was, by my order of 1st April 1927, vide A.I.R. 1927 Nag. 299 remanded to the lower appellate Court for a finding as to whether the lease evidenced by P. 14 wag a prudent transaction carried through by the mortgagor-malguzar in the ordinary course of management, or was a transaction intended to diminish the security of the mortgagee. The Judge of the first Court and the Judge of the appellate Court have both come to a finding contrary to the contentions of the appellant, and in this Court a long argument has been addressed to me why these findings should not be accepted. Much has been made of the fact that, under the lease, the rent has been raised from Rs. 23 to Rs. 40, but I am in full agreement with the learned District Judge that, in the case of a khudkasht field, the assessment, for practical purposes, rarely represents anything like the profits which can be secured from a khudkasht field. No doubt, for the purpose of the Settlement Code, the rent assessed on a khudkasht field represents a proportion of the assessment plus a theoretical profit or rent, but for a 30 acre field like the present one the Rs. 40 rent probably represents only a fraction of its yearly value whoever holds it. The very best proof of it is that the mortgagor took also a premium of no less than Rs. 1,600 which represents nearly 70 years purchase at the assessed rent of Rs. 23. In any event the fact of the payment of this large premium to the mortgagor, at a time when he was endeavouring to stave off final decree being passed, is of itself an obvious indication of the nature of the transaction so far as the mortgagor was concerned. He was obviously out dishonestly to make what profit he could make out of the property and all the, facts suggest his mala fides. I assume here that the Rs. 1,600 was paid, which is, on appellant's case, so far favourable to him, but I agree with the Judge of the first Court that considerable doubt exists as to whether the money ever did pass.

(2.) AS regards the lessor and leasee being relations, it may be that they are only distantly connected by marriage, but the point is that the appellant has other lands in this village and was a man likely to be in touch with the lambardar. The obvious result of the case was to deprive the decree-holder of a large and substantial portion of the property likely to be foreclosed in his favour. It is true he would receive Rs. 40 enhanced rent settled under the lease, but that would be a very inadequate return in view of the obvious potential value of this land on which the premium of Rs. 1,600 was paid, of which the mortgagee-decree-holder receives nothing at all.

(3.) DECISIONS like those in Ishan Chunder v. Bishu Sirdar [1897] 24 Cal. 825 and Hakim Lal v. Mooshohar Sahu [1907] 34 Cal. 995 can have no application whatever in the obvious facts of this case. My attention has been directed to the decision of Hallifax, A.J.C., in Karu v. Pandia A.I.R. 1924 Nag. 226, a decision with which I am in full agreement. If we apply the test therein laid down to the present case, e.g., is it likely that the lessor would have granted this lease himself, if he had known that he was to continue indefinitely as the full owner of; the property? I am of opinion that, on the proved facts of the present case, there can be only one answer to this question and that is a negative one.