JAIRAM Vs. JANKIBAI

JUDGEMENT

(1.) MACNAIR , Offg. J.C. 1. The plaintiff respondents are the malguzars of mouza Wadgaon. Defendants 1 to 3 held a field in absolute occupancy right and on 5th February 1918, they executed a mortgage voidable as against the malguzars in favour of the defendant-appellant. The malguzars brought a suit for a declaration that the mortgage was void as against them and obtained a decree to that effect. It seems clear that, as is held in Nahulsao v. Ramadhinsao [1916] 12 N.L.R. 86, they were entitled to sue for eviction of Jairam. Eviction at that time might not have bean of great benefit to the malguzars as the tenants might before eviction have been put in possession by the mortgagee, or if not would probably have been reinstated in possession under the provisions of Section 41(8), C.P. Tenancy Act of 1838. Some years later, the malguzars purchased the rights of the tenants in the field and they now sue for possession of the field. The trial Judge hold that as the suit was based on the sale deed, the plaintiffs could get possession only after paying the amount due an the mortgage. In first appeal, however, it was held that as the mortgage is not binding on the plaintiffs, they were entitled to a decree for possession without payment.

(2.) IN second appeal two arguments' which require consideration are advanced. Other grounds of appeal are not pressed. The first is that the suit is barred by Clause 2, Rule 2, the cause of action, so far as Jairam is concerned, has not been affected by the purchase of the tenancy rights, the plaintiffs could have sued for and claimed possession at the time they asked for a declaration: they omitted without the leave of the Court to sue for a relief to which they were entitled in respect of the cause of action, namely that Jairam had taken a mortgage-deed and entered into possession of the field and they cannot now sue for the relief of possession.

(3.) THE next ground is based upon a ruling: Seth Lakhmichand v. Thakur Raghuraj Singh [1899] 12 C.P.L.R. 127. In that case it was held that a malguzar, who knew of the mortgage-deed and purchased the rights of the mortgagors with the intention of avoiding the mortgage-deed, was attempting to commit an open fraud although the mortgage was voidable as against him. With the greatest respect 1 express my dissent from this proposition the moitgagee is deemed to know that the mortgage was voidable at the option of the malguzar; the malguzar could eject him and retain possession of the field if he came to terms with the tenant-mortgagor. The mortgagee takes the risk of the landlord and the tenant coming to terms and depriving him of his security and is not, in my opinion, defrauded if this occurs. Although this ruling was published when the former Tenancy Act was in force. It appears applicable to the question which I have to decide. I, therefore, refer for the decision of a Bench the following question: Is a malguzar who has bought up the rights of absolute occupancy tenants, entitled to possession as against a mortgagee when the mortgage is voidable at-the option of the malguzar?