Mathura Rai and Others vs Babu Mandal Das and Babu Mukhan Lal

Coutts, J.—The facts of this case are shortly as follows: Mukhan Lal, defendant No. 6 in the suit, was the sole proprietor of Mauza Patalma, Touzi No. 2966 of the Shahabad Collectorate. Defendants Nos. 1 to 5 were Bhaoli tenants of a portion of this Mauza, Somewhere about the year 1901 the defendant No, 6, Mukhan Lal, mortgaged Mauzi Patalma to the plaintiff, Mukhan Lal remaining in possession. The plaintiff subsequently brought a suit on the basis of this mortgage and in 190) he obtained a decree. In 1911 settlement proceedings started in Mauzi Patalma. A dispute arose about rent between the defendant No. 6 and the defendants Nos. 1 to 5, the defendant No. 6 claiming that the rant was Bhaoli rent and the defendants Nos. 1 to 5 claiming that it was Nagdi rent. The parties, however, came to an agreement that the defendants should pay Nagdi rent and this rate was settled u/s 109 (c) of the Bengal Tenancy Act. On the 8th of October 1912 the plaintiff purchased the property in execution of his mortgage decree and got possession, and on the 24th of November 1912 the Record of Rights was published with the rent of defendants Nos. 1 to 5 entered as settled u/s 109(c). The plaintiff has therefore, brought this suit for a declaration that he is not bound by the entry in the Record of Rights. He also sued for arrears of Bhaoli rent. The suit was decreed in the trial Court and this decree having been upheld by the District Judge, the defendants Nos. 1 to 5 have appealed to this Court.

Both the lower Courts have found that before attestation the tenant defendants paid produce rent and that the rate settled on compromise u/s 109(c) of the Bengal Tenancy Act is considerably lower than the average rate settled on commutation of produce rent in the vicinity. There is also a finding of the Munsif, which has not been displaced by the learned District Judge, that the defendant No. 6, Mukhan Lal, colluded with the tenants and after taking a large Nazarana he agreed to an unjustifiably low rate because he saw no chance of saving the property from sale.

The first point which has been urges in appeal before us is that the rent having been commuted from Bhaoli into Nagdi rent u/s 49, the Civil Court hag no jurisdiction. This, however, is not a case of commutation at all and has not been treated as such in either of the lower Courts. Accordingly the question of the jurisdiction of the Civil Court does not arise. The real question is whether the mortgagee is bound by the agreement u/s 109 (c) of the Bengal Tenancy Act which was made between the tenants and the mortgagor in possession. Both the lower Courts have found that he was not, and with this view I agree. The question under what circumstances a mortgage is bound by the acts of the mortgagor in possession was fully discussed in Anand Ram Marwari v. Dhanpat Singh 38 Ind. Cas. 37 : 1 P.L.J. 563 : 2 P.L.W. 341. After considering the cases of Madan Mohan Singh. v. Raj Kishori Kumari 17 Ind. Cas. 1 : 17 C.L.J. 384 and Reynolds v. Ashby & Sons, Limited (1903) 1 K.B. 87 : 72 L.J.K.B. 51 : 87 L.T. 640 : 51 W.R. 405 : 19 T.L.R. 70 Atkinson, J., remarked: "It is thus laid down and recognised that where a person gets a contractual benefit from a mortgagor in possession after the date of the mortgage, the onus is upon such person to prove that it was a benefit which he might derive and retain in the usual course of the management of the property." In the present case it is perfectly obvious that the. benefits which the defendants Nos. 1 to 5 derived from the agreement were not such as they might retain in the usual, course of the management of the property. Up till the time of the agreement they paid produce rents. The rate settled on compromise was considerably lower than the fair rent which would have been settled on commutation, and it has been found by the learned Munsif that this abnormally low rate was entered into because the mortgagor saw no means of saving his property. He accordingly colluded with the tenants and on condition of a heavy Nazarana he entered into an agreement which no manager would in the usual course of management have entered into.

I would accordingly dismiss this appeal with costs.