# NARAYAN SINGH BAHADUR v. CHOHAN RAM AND ANOTHER

- **Citation:** [1953] 1 S.C.R. 108
- **Court:** Supreme Court of India
- **Decided:** 1953
- **Bench:** Mehr Chand Mahajan, Chandrasekhara Aiyar, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narayan-singh-bahadur-v-chohan-ram-and-another-100
- **Pages:** 12

## Headnote

Tran.<fer of Property Act (IV of 1882), ss. 66, 65-A-Mortgage
-Mortgagor in possession-Power to lease-Law before amendment
Act of 1929-Permanent lease by mortgagor-Validity.
Under the hiw as it stood prior to the enactment of s. 65-A
of the Transfer of Property Act, by Act XX of 1929, the question
whether the mortgagor in possession had power to lease the mort-
~·~ed property has got to be determined with reference to the
S.C:R.
SUPREME COURT REPORTS
109
authority of the mortgagor as the bailiff or agent of the mortgagee
1952
to deal. with the property in the usual course of management. It
has to be determined on general 'principles and not on the distincRaja
tion between an English mortgage and a simple mortgage or,pn the
Kamakshya
considerations germane to s. 66 of the Transfer of Property Act, Narayan Singh
and the true position is that the mortga.gor in possession may make
Bnhadur
a lease conformable to usage in the ordinary course of manage- '
v.
ment; for instance, he may create a tenancy from year to year Ohohan Ram
in the case of agricultural lands or from month to month in the
mid Anothsr.
case of houses.
But it is not competent to him to grant a lease
on unusual terms or to alter the character of the land or to authorise its use in a manner, or for a purpose, different from the mode
in which he himself had used it before he granted the mortgage.
And it is for the lessee, if he wants to resist the claim of the
mortgagee, to establish that the lease in his favour was granted on
the usual terms in the ordinary course of management.
,
Where a mortgagor granted a permanent lease of the mortgaged property in the year 1925 and the High Court upheld the
lease as against a person who had purchased the properties in a
sale held in execution of a decree obtained by the mortgagee on the
mor£ga.ge, on the ground that the lease did not impair the security
of the mortgagee: Held, that the lea.se was not binding on the
mortgagee or the auction purchaser as it was not a lease granted
in the usual course of management, even though it did not impair
the security.
Madan "Mohan Singh v. Ra.j Ki shore Kumari (1916) 21 C.W.N.
88, approved.
Balmuk1tnd v. Molila.l (1915) 20 C.W.N. 350, dissented from. Banee Prasad v. Reet Bhuninn Singh (1868) 10 W.R.
325, explained.
·

## Text

108
· SUPREME COURT REPORTS
[1953)
'
· 1952
where death is accidental and the accused has acted
P 1 .-a- K
in a peculiar manner regarding the disposal of the
"·""' ;' aur dead body for reasons best known to himself.
One of
ThcSt~te of them ·might well be that he was afraid of a false case
Punjab.
being started against him. Life and liberty of persons
cannot be put in jeopardy on mere suspicions, howso·
Maha.ian •7· ever strong, and they can only be deprived of these
on the basis of definite proof.
In this case, as found
by the High Court, not only were the Sub-Inspector
of police and police constables and other witnesses
guilty of telling deliberate lies but the prosecution
was blameworthy in introducing witnesse> in the case
to support their lies and that being so, we feel that it
woulxl be unsafe to convict the appellant on the
material that is left after eliminating the perjured,
false and inadmissible evidence.
1952
Oct. 29.
For the reasons given above we allow this appeal,
set aside the conviction of the appellant under section '201, Indian Penal Code, and acquit her of that
charge also.
Appeal allowed ..
Agent for the appellant: Sardar Bahadur.
Agent for the respondent: P. A. Mehta.
Agent for the caveator: Harbans Singh.
RAJA KAMAKSHYA
NARAYAN SINGH BAHADUR
v.
CHOHAN RAM AND ANOTHER
[MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR
and BHAGWATI JJ.]
Tran.<fer of Property Act (IV of 1882), ss. 66, 65-A-Mortgage
-Mortgagor in possession-Power to lease-Law before amendment
Act of 1929-Permanent lease by mortgagor-Validity.
Under the hiw as it stood prior to the enactment of s. 65-A
of the Transfer of Property Act, by Act XX of 1929, the question
whether the mortgagor in possession had power to lease the mort-
~·~ed property has got to be determined with reference to the
S.C:R.
SUPREME COURT REPORTS
109
authority of the mortgagor as the bailiff or agent of the mortgagee
1952
to deal. with the property in the usual course of management. It
has to be determined on general 'principles and not on the distincRaja
tion between an English mortgage and a simple mortgage or,pn the
Kamakshya
considerations germane to s. 66 of the Transfer of Property Act, Narayan Singh
and the true position is that the mortga.gor in possession may make
Bnhadur
a lease conformable to usage in the ordinary course of manage- '
v.
ment; for instance, he may create a tenancy from year to year Ohohan Ram
in the case of agricultural lands or from month to month in the
mid Anothsr.
case of houses.
But it is not competent to him to grant a lease
on unusual terms or to alter the character of the land or to authorise its use in a manner, or for a purpose, different from the mode
in which he himself had used it before he granted the mortgage.
And it is for the lessee, if he wants to resist the claim of the
mortgagee, to establish that the lease in his favour was granted on
the usual terms in the ordinary course of management.
,
Where a mortgagor granted a permanent lease of the mortgaged property in the year 1925 and the High Court upheld the
lease as against a person who had purchased the properties in a
sale held in execution of a decree obtained by the mortgagee on the
mor£ga.ge, on the ground that the lease did not impair the security
of the mortgagee: Held, that the lea.se was not binding on the
mortgagee or the auction purchaser as it was not a lease granted
in the usual course of management, even though it did not impair
the security.
Madan "Mohan Singh v. Ra.j Ki shore Kumari (1916) 21 C.W.N.
88, approved.
Balmuk1tnd v. Molila.l (1915) 20 C.W.N. 350, dissented from. Banee Prasad v. Reet Bhuninn Singh (1868) 10 W.R.
325, explained.
·
CIVIL APPELLATE JURISDICTION: Civil Appeal
.N"o. 73 of 1950.
Appeal from the Judgment and
Decree dated the 26th January, 1944, of the High
Court of Judicature. at Patna (Faz! Ali C. J. and
Chatterji J.) in Appeal from Original D~cree No. 4
of 1941, arising out of Judgment and Decree dated
the 20th September, 1940, of the Court of the Additional Subordina~ Judge of Ha7.aribagh in 'Title Suit
No. 45 of 1939.
S. N. Mukherjee for the appellant.
Ganga.charan Mitkherjee and A. N. Sinha for the
respondents.
1951 October 23. rrhe judgment of the Court was
delivered by BHAGWATI J.
15
110
SUPREME COURT REPORTS
[1953]
1952
BHAGWATI J. --The question that arises for onr
R .
consideration in this appeal is whether prior to the
K,in;,;,,:hya euac.tmcnt of seition 65-1\ of the ·rransfer of Propet·ty
Narayan Singh Act 1i1 1929 a mortgagor m possess10n had the pow.er
Bahadur
. to grant a perrr.anent lease of the mortgaged prov.
. perty so as to bind the mortgagee.
ChohanRam
0
R. N'Jl
hN
. s·
h
h
f
and Another.
.irn . aJa
1 rnnt
aram mg was t e owner o
Gad1 Sirampur a,nd he executed on the 1st August,
Bhagwati J. 1914, a simple mortgage of Gadi Sirampur in favour
of the Chota N:tgpur Banking Associatiqn Limited.
In 1920 the Bank filed a suit against his son Wazir
Narain Singh to enforce the mortgage security and
obtained a mortgage decree on the 29th November,
1921. 'fhe Bank purchased a third share of Gadi
Sirampnr in execution of that decree on the 28th
October, 1922. Proceedings were taken to set aside
this sale. During the pendency of these proceedings
it appears that on the 5th November, 1925, Wazir
Na rain Singh granted a permanent lea;;e of four
villages N awaaih, Kolaih, Panana and Chihut.ia by a
registered Patta to one Hiraman Ram who was the
Manager and Karta of his joint Hindu family.
'rhe
permanent lease was taken by him in bis own name
and in tbe name of his son Chohan Ram. An agreement was subsequently arrived at between the Bank
and Wazir Narain Singh that if Wazir Narain Singh
paid to the Bank on or before the 16th August, 19:26,
the sum of Rs. 1,10,631-4-0 the sale would be set
aside.
Wazir Narain Singh executed on the 14th
August. 1926, a mortgage of Gadi Sirampur in favour
of the Manager of the Court of Wards in charge of
the plaintifi's estate during his minority to secure
repayment of a suin of Rs. l ,47,0QO and out of the
same satisfied the dues of the Bank and the sale in
favour of the Bank was accordingly set aside.
The
plaintiff through the Manager of tl\e Court of Wards
filed a suit on the 4th February, 1929, to enforce this
mortgage and he impleaded as co-defendants in that
suit Hiraman Ram as defendant 20 and his father
Dilo Ram as defendant 19. A final decree for sale
was passed OI\ t)<e 18th September, 1931, and the
•
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plaintiff purchased Gadi Sirampur rtt the auction
1952
sale held rn execution of this-decree on the 6th April,
R .
193.5 .. Delivery of possession was 00tained by the
Kani°';l~hya
plamt1ff through the Court on the 16th February, Nai·aycin Singh
1936. Dito Ram died after the mortgage decree but
Bahadur
Hiraman Ram and his son Chohan Ram continued in
v.
actual possession of the disputed villages and the Ghohan Rani
plaintiff therefore filed on the 16th November, 1939, g,nd Another.
the suit, out of which this appeal arises, in the Court
Bhagwati J.
of the Additional Subordinate Judge of Hazaribagh
against Hiraman Ram and Chohan Ram, defendants
1 and 2, for khas possession of these village,;. The
plaintiff contended that he was subrogated to the
.position of the Bank, that the dec:·ee which had
beeu passed in the mortgage suit waq binding 0:1 the
defendants, that he was the auction purchaser in
execution of that mortgage decree and that the Patta
being subsequent to the plaintiff's mortgage thus
came to an end and he was entitled to reco1·er khas
possession from the defendants.
Ddendant 2 filed
his written statement contesting the plaintiff's claim.
He denied that the plaintiff was subrogated to the
position of the Bank. He contended that the decree
in the mortgage suit was not binding on him as he
was not a party to that suit.
He further contended
that the Patta could not be put an end to by the
auction sale of the mortgaged property. 'rhe defend·
ant 1 filed a separate written statement.
He denied
that he was the Manager and Karta of the joint
Hindu family.
He also contended that .there was a
partition amongst the members of the joint family
within a year after their possession of the properties
in suit and the properties had been allotted at that
partition to the defendant 2.
The trial Court held that the plaintiff was subrogated to the position of the Bank. It also held that
the defendant 1 was the Manager and Karta of the
joint family and that the defendant 2 was fully
represented iu the mortgage suit, tha\, the decree in
the mortgage suit was binding on the defenda,nts and
that the plaintiff was entitled to recover possession
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[1g53j
1952
of the said properties and mesue profits from the
defendants.
'l'he defendants appealed against this
KaR~k:h "
decree to the High Court of Judicature at Patna.
Nara':.n Si~gh The 'High Court negatived the contention in regard
Bahadur
to constructive res Judicata which was urged on behalf
v.
of the plaintiff. It then considered the further couCkohan Ram ten ti on that Wazir Narayan Singh had, after creating
and Another.
h
·
f
f h
B
k
t e mortgage m
a vour o t e
au no power to
Bhagwati J. grant the permanent lease in question to the defendants. After considering all the authorities which were
cited before it, it came to the conclusion that the
question whether WaY.ir Narayan Singh had got such
power or not had to be determined with reference to
the provisions of section 66 of the Transfer of Pro-,
perty Act and the crucial test was whether the lease
rendered the mortgagee's security insufficient. In
spite of the fact that there was no allegation in the
plaint that the defendant's lease had the effect of
rendering the security of the Bank insufficient, the
High Court went into this question and on a calculation of some figures came to the conclusion that the
lease of the disputed villages in favour ofthe defendants did not in any way render the security of the
bank insufficient. It therefore held that the lease was
valid and was not affected by the plaintiff's mortgage
decree or by the execution sale under that decree and
accordingly dismissed the plaintiff's suit. 'rhe plaintiff obtained leave to appeal to the Privy Council
from this decision of the High Court and the appeal
was admitted on the 9th January, 1946.
Both the Courts below found that the plaintiff was
subrogated to the position of the Bank.
'rhey also
found that the defendant 2 was sufficiently represented in the mortgage suit .. 'rhese findings ·Were no.t
challenged before us and the only question which
survived for our consideration was whether Wazir
Narayan Singh had the power to grant a permanent
lease to the defendants so as to bind the plaintiff.
The question whether Wazir Narayan Singh had
such po,wer has got to be determined under the law
as it stood prior to the enactment of section 65-A of
..
,
•
..
S.C.R.
SUPREME COUR'l
1 REPOR'fS
113
the Transfer of Property Act by Act XX of 1929. The
1953
mortgagor's power to lease the mortgaged property
.
was the subject-matter of conflicting judicial decisions.
KllR"Jk"1
.
.
•
ma .s iya,
Relymg upon the rule of English common law under N<1r<1y<1n Singh
which the mortgagor had no power to lease, it was
B<1h<1dur
held in some cases that a mortgagor could not ordiv.
narily without the concurrence of the mortgagee exeGhohlln Rllm
ld b b d
h
llnd Anothe,._
cute a lease which cou . e in ing on t e mortgagee.
In other cases a distinction was drawn between
Bh<1gw<1ti J.
English mortgages and other mortgages and it was
considered that the mortgagor in India remained the
owner and when in possession could prima facie exercise the rights of ownership inclusive of the power to
grant leases of the mortgaged property. 'fhe question
was decided with reference to section 66 of the Transfer
of Property Act and it was held that the mortgagor
could grant leases which were not wasteful in their
effect on the mortgagee's s'eeurity.
This was the
principle deduced by Jenkins C.J. in Balmukund v.
Motilal(1) from the old case of Banee Pershad v. Reet
Bhunjiin Singh( 2).
'1
1his line of reasoning was not
adopted in other cases which laid down a different
rule, viz., that a mortgagor in possession might grant
a lease conformable to usage in the ordinary course
of management but was not competent to grant a
lease on unusual terms or authorise the use of land in
a manner, or for a purpose, different from the mode in
which he himself had used it before he granted the
mortgage.
This was laid down by Sir Ashutosh
Mukherjee J. in Madan Mohan Singh v. Raj Kishore
Kumari( 3) and was followed in a number of cases.
1
1here was thus a conflict of decisions which was
sought to be resolved by the enactment of section 65-A
of the Transfer of Property Act which dealt with the
mortgagor's power to lease while lawfully in possession of the mortgaged property.
"It is an elementary rule that though a mortgagor
may assign the mortgaged premises, the assignee can
only take subject to the encumbrances, and if the
(1) (1915) 20 C. W, N. 350,
(2) (1868) IO W.R. ~25.
(3) (1916) 21 C. W. N. ~8.
114
SUPREME COUR'P REPORTS
[1953)
1952
property is sold or foreclosed by the mortgagee, any
R .
interest which the mor,tgagor may have created since
Kam";T:hy• the m~rtgage will be destroyed".
(Ghosh on MortNara11.,, Singh gage, Vol. I, p. 212.)
As was observed by
J~ord Se1Bahadur
borne in Corbett v. Plowden('), "If a mortgagor left
v.
in posse,sion, grants a lease without tbe concurCkohan Ram rence of the mortgagee (and for this purpose, it
and Another. makes no difference whether ip is an equitable lease
Bhagwati J. by au agreement under which possession is taken
or a legal
lease by actual demise), the lessee
has a precarious title, inasmuch as although the
lease is good as between himself and the mortgagor
who granted it, the paramount title of the mortgagee
may be asserted against both of them." It does not
however follow that a lessee from the mortgagor
acquires
no interest whatever in the property
demised to him.
A person taking a lease from a
mortgagor after the mortgage does acquire au
interest in the equity of redemption and can claim
to redeem on that footing.
But this right of
redemption does not necessarily mean that a lease
of this character is always operative against the mortgagee.
Merely b€cause a lessee acquires au interest
in the mortgaged property which is sufficient to
enable him to redeem the mortgage it does not follow
that the interest which the lessee bas thus acquired
is operative against the mortgagee. The true position
is somewhere in the middle ·of these two extremes.
The mortgagee is not normally bound by the acts of
the mortgagor with reference to the mortgaged
property. "But if a mortgagee takes his security with
knowledge of the.purposes to which the land is applied and allows the mortgagor to remain in possession he will be bound by the acts done by the mortgagor in accordance with the usual course." (Ghosh
on Mortgage, Vol. I, p. 212.)
As indicated in the
observations of Sir James Parke in Pope v. Briggs(')
the mortgagor might be considered as acting in the
nature of a bailiff or agent for the mortgagee.
Consequently, if the mortgagor, after he has granted the
(I) (1884) •5 Ch. D. 678 at p. 681.
{2) (1829) 9 Barn, & Cres. 245 at p. z58.
l .
S.O.R.
SUPREME COURT REPORTS
115
mortgage, deals with the property in the usual course
of management, the interest•created by him may be
rightly deemed operative against the mortgagee. An
illustration of this view is found in the case of
0Moreland v. RichardsonC) where a person took a mortgage
of a burial ground and it was held that, as the object
of the burial ground is to grant rights of burial, this
being the mode in which such property is dealt with,
the mortgagee was not entitled to disturb the graves
of those who had been buried on the land, *hile the
mortgagor continued to hold it. 'rhe mortgagor could
thus in the usual course Gf management create a ten~
ancy from year to year in the case of agricultural land
or from month to month in the case of property consisting of houses and his dealings with the mortgaged property in the usual course of management would be
operative against the mortgagee. [Per Mukherjee J.
in ]fadan Mohan Singh v. Raj Kishore Kumari(2)].
"Whether the mortgagor possesses any larger powers
of leasing is however very questionable.
The only
reported case in which such a power was recognised is
Banee Pershad v. ReetBhunjunSingh(3) but the report
in Sutherland is very meagre. The judgment too does
not give forth any certain sound (sic.). It is only said
that a mortgagor is not restricted in the ma·nagement
of the property by making a mortgage and that so long
as nothing takes place to impair the value of the mortgagee's security the mortgagor does not exceed his
powers in making a lease for a term.
'llhe learned
judges add perhaps somewhat unnecessarily that their
decision should not go beyond the particular facts of
the case before them."
(Ghosh on Mortgage, Vol. I,
p. 213.)
This case of Banee Pershad v. Beet Bhunjun Singh(3
was considered by Jenkins 0. J.' in Balmukimd v.
Motilal( 4)· as an authority for the proposition that as
long as nothing took place which impaired the value
or impeded the operation of the mortgage, the mortgagor in creating a temporary lease acted within his
powers and these observations of Jenkins C.J. were
(I) (1857) 24 Beav; 33.
(3) (1868) 10 W.R. 325.
(2) (11116) 21 C.W,N. 88 at pp. 91~ 92:
('f) (1915) C.W.N. ~so.
1952
Raja
Kamakshya
Narayan Singh
Bahadm·
v.
Ghohan Ram
and Another.
Bhagwati J
116
SUPREME COURT REPORTS
[1953]
· 1952
considered by the Courts as justifying the applicability
R .
of the provisions of section 66 of the Transfer of ProKam;;,;hya
perty Act while determining the binding nature of the
Narayan Singh leases"created by the mortgagor in possession on 'the
Bahadur
mortgagee.
Mukherjee· J. had occasion to consider
·v.
this very case in Madan Mohan Singh v. Raj Kishore
ChohanRani Kumari(') and be cited it in support of the proposition
and Another. that the interest created by the mortgagor while dea1Bhagwati J, ing with the mortgaged property in the usual course
of management could he rightly deemed operative
against the mortgagee.
'l'he following observations
of Mukherjee J. in this connection at page 91 are very
apposite:-
"As the case is very imperfectly reported, we have
examined the record and ascertained the questions in
controversy. 'rhe proprietor of an estate mortgaged
it on the 12th March, 1861. On the 7th July, 1862,
the mortgagor granted an ijara potta of the property
for a term of ten years. The mortgagee subseq nently
sued the mortgagor alone and got a decree; at the
execution sale which followed, the property was sold
on the 24th December, 1863. The purchaser sued on
the 12th March, 1867, to eject the lessee, on the
ground that as he had acquired the property in the
condition in which it was when mortgaged, the lease,
which would otherwise run till the 7th July, 1872, did
not bind him.
The Court of first instance overruled
this contention as too broadly formulated, and
held that as·the mortgagor had in good faith granted
the lease for a limited term on a fair and. reasonable rent, the mortgagee or the purchaser in execution cif his decree could not repudiate it, specially
as the mortgage deed did not prohibit the grant of
temporary leases to middlemen or cultivators.
On
appeal, the District Judge affirmed this view and
declined to accept the broad contention that leases of
all descriptions granted by a mortgagor were void as
against the mortgagee.
On second appeal to this
Court, Jackson and Mitter JJ, took substantially the
.
"
same ·view.
!!) (1916) 21 C,W.N. 88,
..
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.
117
These observations of Mukherjee J. point out what
19511
was the ratio decidendi of that case. The question of
R .
the sufficiency or insufficiency of the security wa.s not
Kam';k~hya
really gone into but the Court . considered that the Narayan Singh
lease was granted in good faith, was for a limited term
Bahadur
and stipulat@d a fair and reasonable rent and it was
v.
f
·
h
Th
Chohan Ram
there ore operative against t e mortgagee.
e and Another.
Court was really guided by the consideration that the
mortgagor dealt with the property in the usual course
Bhagwati J.
of management and the interest which was thus
created by the mortgagor in the usual course must
rightly be deemed operative against the mortgagee.
The case of Banee Pershxd v. Reet Bhunjan Singh(1)
therefore is really no authority for the wide proposition that a mortgagor was not restricted in the
management of the property by making a mortgage
and that so long as nothing took place to impair the
value or impede the operation of the mortgage the
mortgagor would be well within his powers in making
a lease for a term.
In our opinion section 66 of the Transfer of Property Act has nothing to do with the mortgagor's
power to lease the mortgaged property.
Section 66
is a statutory enactment of the powers of the mortgagor in possession in regard to waste of mortgaged
property.
The mortgagor in possession is not liable
for what in terms of the· English Law of Real
Property is known as permissive waste, i.e., for omission to repair or to prevent natural deterioration. He
is however liable for destructive waste, i.e., acts which
are destructive or permanently injurious to the mortgaged property if the security was insufficient or
would be rendered insufficient by such acts.
This
section therefore has no application to the grant of a
lease by the mortgagor in possession.
'fhe only relevant consideration is whether, the
mortgagor in possession having the authority to deal
with the property in the usual c0nrse of management,
tihe leaBe granted by him can be rightly deemed operative against the mortgagee.
The true position has
been stated in the following terms by Mukherjee J.,
in Madan Mohan Singh v. Raj Kishore Kumari( 2)..:
{I) (1868) IO W,R, 325.
(2) (1916) 21 C. W.N. 88 at page 92.
J(;
118
SUPREME COURT REPORTS
[1953]
1952
"The true position thus is that the mortgagor in
.
possession may make a lease conformable to usage in
Ka~,":,:,hya the Qrdinary course of management, for instance, he
Narayan Sinah may create a tenancy from year to year m the case of
Bahadur
agricultural lands or from month to month in the
v.
case of houses.
But it is not competent to the mortOhohan Ram gagor to grant a lease on unusual terms, or to alter
and Another. the character of the laud or to authorise its use in a
manner or for a purpose different from the mode in
!Jhauwati J.
which he himself had used it before he granted the
mortgage."
The question whether the mortgagor in possession
has power to lease the mortgaged property has got to
be determined with reference to the authority of the
mortgagor as the bailiff or agent for the mortgagee
to deal with the property in •the usual course of
management. It has to be determined ou general
principles and not on the distinction between au
English mortgage and a simple mortgage or on considerations germane to section 66 of the Transfer of
Property Act.
Having regard therefore to the position that section 66 has no application to leases of
the mortgaged property, the decision of Jenkins C.J.
in Balmukund v. Motilal(') and the cases following
that line of reasoning do not govern the question
before us.
While we are on this subject we would like to emphasise that it is for the lessee if he wants to resist
the claim of the mortgagee to establish that the lease
in his favour was granted on the usual terms in the
ordinary course of ,management.
Such a plea if
established-and it must not be overlooked that the
burden of proof in this matter is upon him-would
furnish a complete answer to the claim of the mortgagee. If the lessee failed to establish this position
he would have certainly no defence to an action at
the instance" of tl).e mortgagee.
No allegation was made on behalf of the defendants
that the grant of the permanent lease was a dealing
with the mortgaged property in the usual course of
management by the mortgagor. In the absence of
(1Hx915) 20 C.W.N. 350.
..
'
... •
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SiJPEEME COUR'l' REPORTS
119
any such plea we are of the opinion that there was
no answer to the plaintitf's claim and the permanent
lease granted by 'lv azir Narayan to the defeni{ants
could not prevail against the plaintiff.
We have therefore come to the conclusion that
Wazir Narayan Singh had no power to grant the permanent lease in question to the defendants, that the
same was not binding and operative against the
plaintiff, that the defendants nad ample opportunity
to redeem the mortgage if they so desired but d
1id not
choose to exercise their right of redemption, that the
execution sale of Gadi Sirampur including the four
villages in question was binding on them and that the
plaintiff was entitled to khas possession of the four
villages of which the defendants were in wrongful
possession. The appeal is allowed. The decree passed
by the High Court dismissing the plaintiff's suit is set
aside and the decree passed by the trial court in favour of the plaintiff is restored with costs throughout.
Appeal allowed.
Agent for the appellant : Ganpat Bai.
Agent for respondent No. 1: R. R. Biswas.
PAYYAVULA VENGAMMA
v.
PAYYA vur_JA KESANNA AND OTHERS
[MUK
0HERJEA, 0HANDRASEKHARA AIYAR
and BHAGWATI, JJ.]
Arbitration-Arbitrator taking statement from one party in the
absence of the other-Legal misconduct-TT alilhty of award-Question of prejudice.
Where, in an arbitration under s. 21 of the Indian Arbitration
Act, the arbitrator took statements from each of the parties in the
absence of the other and made an award: Held, that it is one of
t.hi; ~lrirMntM'Y iwinciiplM 6f thA 9.dministro.tion of justice, whether
by courts or by arbitration by lawyers or merchants, that a party
~houlc1 not be allowed to use any means whatsoever to influence
1952
Raja
Kainakshyti
Narayan Singh
BahadZ<r
v.
Chohan Ram
and Another.
Bhagwati J.
1962
Oct. 29.