JUDGMENT
Mahabir Prasad, J.
1. The question involved in these appeals is whether the commutation of bhaoli rent into nakdi during the continuance of a mortgage by a mortgagee in possession with-out the consent of the mortgagor can be binding upon the mortgagor after the redemption of the mortgage.
2. The appeals by the plaintiff arise out of suits for the recovery of produce rent of Khata Nos. 145 and 138 for the year l352 Fasli. The holdings in respect of which the rents have been claimed were admittedly bhaoli when the mortgage of the village in which the holdings lie was effected.
3. The defendants pleaded that the rents of these holdings were commuted into nakdi by the rehandars and in one of the suits being suit No. 46, the holding was amalgamated with another land with the consent of the rehandar. It was also pleaded by the defendants that the commutation and the amalgamation were with the consent of the proprietor, the plaintiff.
4. Both the Courts below have concurrently held that the proprietor, that is, the plaintiff-mortgagor was not a consenting party to the commutation or the amalgamation. They have, however, held that the commutation and amalgamation appear to have been made by the rehandars in the ordinary course of the management of the estate. They have further held that the rehandars were authorised to make commutation and agree to amalgamation under the terms of the mortgage bond.
5. It is contended on behalf of the plaintiff-appellant that the Courts below have misconstrued the rehan bond in that they have held that under its teems the mortgagee in possession was authorised to agree on his behalf to commutation of the rent and amalgamation of holdings and that there being no such authority, the commutation and amalgamation effected by the rehandars are not binding upon him.
6. The contention raised on behalf of the appellant regarding the erroneous construction of the term in the mortgage bond by the Courts below seems to be well founded. What has been construed by the Courts below as authorising the rehandar to commute rents of the bhaoli holdings into nakdi as also to agree to amalgamation as officially translated is this;
…”other kinds of lands with all the rights and incidents appertaining thereto without excepting any right or profit..”
This expression occurs in this contest:
“We the executants, give in usufructuary mortgage in lieu of interest on the said amount of debt, the 8 anna 9 out of 16 annas Mahal Magharia pergana Mahaur, District Shahabad, Sub-Registry Jagdishpur tauzi No. 3838 constituting our milkiat property owned and possessed by us together with jalkar, bankar, reservoir, tank, brick-built and mud-built wells, fruit bearing and non-fruit bearing trees, bamboos clumps, sairs, ground rent of the houses of tenants, aeerat lands and all other kinds of lands with all the rights and incidents appertaining thereto without, excepting any right or profit, but excluding the raiyati right in 22B. 11K, 18dh. of our Guzasta kasht landa specified above from the agricultural yeara 1320 to 1323 Fasli to Rambasi Kuer widow of Lala Angrahit Lall deceased.”
7. It is clear that by the passage in question the mortgagor while parting with all his rights in the village for the period of the mortgage excludes his raiyati right which he possesses in 22 bighas 11 kathas 18 dhurs. What he wants to emphasise is that the mortgagee will have all lands other than katht land, and expressly excludes all the rights and incidents appertaining thereto. It is difficult to see how the passage in question can be construed as conferring an authority on the mortgagee to deal with the lands mortgaged in such a manner as to affect its incidents permanently, that is to say, to so affect the conditions on which the lands were being held as to enure even after the period of the mortgage. The Courts below were certainly wrong in their construction of the passage in question. I have no hesitation to hold that the mortgagors never intended to and did not, authorise the mortgagees in possession to effect changes in the incidents of the holdings in the village mortgaged.
8. The question which remains to be considered is as to whether in the absence of such authority the commutation and amalgamation effected by the rehandars are binding upon the plaintiff-mortgagor. It is clear that the mortgagee in possession cannot by his contract effect alteration in the mortgaged property which may enure beyond the period of the mortgage. He is certainly entitled to make use of the lands comprised in the mortgage profitably to himself. He can certainly give leases to last during the continuance of the mortgage. He can certainly agree to receive rents in cash of the holdings which may be bhaoli daring the period that he is in possession as a mortgagee. Any such arrangement arrived at between the mortgagee in possession and the tenants cannot bind the mortgagor. If a lease given by a mortgagee in possession cannot enure beyond the period of mortgage, as held in the case of Jhagru Mian v. Raghunath Singh, 10 P. L. T. 625: (A. I. R. (16) 1929 Pat. 630), commutation of rent as a matter of contract between the mortgagee and the raiyat, cannot be operative as against the mortgagor. The learned Subordinate Judge has observed that the commutation and amalgamation in question appear to have been made by the rehandars in the ordinary course of the management of the estate. Apart from the fact that he has referred to no evidence on which this observation is based, it is obvious that an agreement to commute bhaoli rent into nakdi cannot be held binding on the mortgagor, as something done in the ordinary course of the management of the estate, it may be that in some instances commutation of produce rent into money rent is for the benefit of the landlord, but it must always be left to the landlord to determine whether such commutation is for his benefit. It is clear that a mortgagor will not repudiate commutation of rent effected by a rehandar, if on redemption of the mortgage he finds that it is for his benefit, and the question whether such commutation is binding upon him will not arise. To a suit by a mortgagor for bhaoli rent, it seems, it will be no defence for the raiyat to allege and prove that the commutation effected by the rehandar is for the benefit of the estate, and, therefore, binding upon the mortgagor. The mortgage is not in a position of a trustee or guardian of a minor so that his acts can be held to be binding upon the mortgagor if such acts be found to be for the benefit of the estate or the advantage of the mortgagor. The consideration, therefore, whether the commutation in question was in the ordinary course of management and for the benefit of the estate is irrelevant,
9. In view of these considerations, it must be held that the plaintiff is entitled to sue for produce rent of the holdings in question and his claim should be decreed at the rate of 5 maunds paddy per bigha by pucca weight, the sale rate being the Gazette rate prevailing in the year, as held by the learned Additional Subordinate Judge.
10. The appeals are accordingly allowed. There will be no order as to costs of these appeals.
Das, J.
11. I agree and would merely add that in the absence of any evidence it cannot be held that the commutation was an act of prudent management on behalf of the mortgagee in possession. Therefore, the question if such an act would bind the mortgagor does not really arise in these appeals. The mortgagee in possession was not authorised to change the incidents of the tenancy, and his act cannot enure beyond the period of the mortgage.
