{"id":105528,"date":"1967-03-08T00:00:00","date_gmt":"1967-03-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967"},"modified":"2017-05-25T01:12:47","modified_gmt":"2017-05-24T19:42:47","slug":"mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967","title":{"rendered":"Mangru Mahto & Ors vs Shri Thakur Taraknathji … on 8 March, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mangru Mahto & Ors vs Shri Thakur Taraknathji … on 8 March, 1967<\/div>\n
Equivalent citations: 1967 AIR 2390, \t\t 1967 SCR (3) 125<\/div>\n
Author: R Bachawat<\/div>\n
Bench: Bachawat, R.S.<\/div>\n
           PETITIONER:\nMANGRU MAHTO & ORS.\n\n\tVs.\n\nRESPONDENT:\nSHRI THAKUR TARAKNATHJI TARAKESHWAR MATH & ORS.\n\nDATE OF JUDGMENT:\n08\/03\/1967\n\nBENCH:\nBACHAWAT, R.S.\nBENCH:\nBACHAWAT, R.S.\nWANCHOO, K.N.\nRAMASWAMI, V.\n\nCITATION:\n 1967 AIR 2390\t\t  1967 SCR  (3) 125\n\n\nACT:\nCode  of Civil Procedure (Act 5 of 1908), O.XXI, rr. 58\t and\n63--Order  on claim petition against decree-holder--No\tsuit\nfiled for setting aside order--Res judicata, to what extent.\nMortgage-Suit\t by    mortgagee--Lessees    of\t   mortgaged\nproperty  not  parties--Property sold in    execution\t  of\nmortgage  decree--Effect on lessees' right of redemption.\n\n\n\nHEADNOTE:\nThe owner of certain properties over which K had a  mortgage\ngranted\t leases to certain persons.  The lands were sold  in\nexecution  of the mortgage decree of K, and were,  purchased\nby  K at the auction The lessees allowed the property to  be\nsold  and  did\tnot apply for being joined  as\tparties.   K\nobtained  a money decree against one of the lessees  and  in\nexecution attached the lands.  The lessees filed claim peti-\ntions  objecting to the attachment under 0.21 r.  28  C.P.C.\nThe  claim  petitions were allowed and the  executing  court\nfound that the leases were genuine.  K did not file any suit\nunder  O.21 r. 63 C.P.C. But later, K filed a  suit  against\nthe mortgagor and the lessees for recovery of possession  of\nthe   lands   alleging\tthat  the  leases   were   collusive\ntransactions  and  were otherwise not binding on  him.\t The\ntrial  court  dismissed the suit holding  that\tleases\twere\ngenuine,,  but the High Court decreed the suit holding\tthat\nthe leases were sham transactions and made in  contravention\nof  s.\t65A of the Transfer of Property Act.  In  appeal  to\nthis  Court, the appellants contended that (i) as K did\t not\nfile any suit under Order 21 r. 63 C.P.C. the adverse Orders\npassed\tagainst\t him  in the proceedings under\t0.21  r.  58\nC.P.C.\toperated as res judicata and he was  precluded\tfrom\nalleging  that the leases were not binding on him; and\t(ii)\nthe leases granted by the mortgagor were binding on K.\nHELD:\t  In  view  of the orders passed against  K  in\t the\nclaim  proceedings and his failure to institute suits  under\n0.21,  r. 63 C.P.C., K was precluded from claiming  that  he\nhad  the right to attach the suit lands in execution of\t his\nmoney decree, but he was not precluded from claiming that he\nhad the right to sell the lands in execution of his mortgage\ndecree. [128 E]\nA claim proceeding tinder 0.21 r. 58 C.P.C. is not a suit or\na  proceeding  analogous to a suit.  An order in  the  claim\nproceeding does not operate as res judicata.  It is  because\nof 0.21 r. 63 that the order becomes conclusive.  The effect\nof  r. 63 is that unless a suit is brought provided  by\t the\nrule,  the  party  against  whom  the  order  in  the  claim\nproceeding is made or any person claiming through him cannot\nreagitate in any other suit or proceeding against the  other\nparty  or  any\tperson claiming\t through  him  the  question\nwhether\t the  property was or no, liable to  attachment\t and\nsale  in  execution  of the decree out of  which  the  claim\nproceeding arose but the bar of rule 63 extends no  further.\n[129 A-C]\nKandadai Narasimhachariar v. Raghava Pedayachi & Ors  I.L.R.\n1946 Mad. 79; approved.\n126\nSubbier v. Moideen Pitchai, A.I.R. 1923 Mad. 562, and  Sarju\nPrasad Missir and Ors. v. Maksudan Choudhuri & Ors.   A.I.R.\n1922 P.C. 341; referred to.\n(ii) 'The  validity of the leases granted by  the  mortgagor\nwas  not affected by s. 65A of the Transfer of Property\t Act\nas  the leases were granted before the enactment of s.\t65A.\n[131 A-B]\nThe leases were not in the ordinary course of management  of\nthe  mortgagor as the agent or bailiff of the mortgagee\t and\nwere not binding of the mortgagee. [132 A-B]\nA  lease  granted  by the mortgagor,, out  of  the  ordinary\ncourse\tof management, though not binding on the  mortgagee,\nis binding as between the mortgagor and the lessee.  Such  a\nlessee\tacquires an interest in the right of redemption\t and\nis  entitled to redeem.\t If such a lease is  created  before\nthe  institution  of a suit relating to\t the  mortgage,\t the\nlessee must be joined as a party to the suit under 0.34,  r.\n1.  C.P.C.;  otherwise he will not be bound  by\t the  decree\npassed in the suit and will continue to retain his right  of\nredemption.   But  in  view  of s. 52  of  the\tTransfer  of\nProperty  Act, if the mortgagor grants such a  lease  during\nthe pendency of a suit for sale by the mortgagee, the lessee\nis  bound by the result of the litigation.  If the  property\nis  sold in execution of the decree passed in the suit,\t the\nlessee cannot resist a claim for possession by the  auction-\npurchaser.   The  lessee could apply for being joined  as  a\nparty  to the suit and ask for an opportunity to redeem\t the\nproperty.  But\tif  he allows the property  to\tbe  sold  in\nexecution of the decree., he loses his right of\t redemption.\nIn  the present case, the lessees allowed the suit lands  to\nbe  sold in execution of the mortgage decree and  they\thave\nnow  lost the right of redemption.  They can of\t resist\t the\nclaim  of the auction-purchaser for 'recovery of  possession\nof the lands. [132 D-G]\nRaja Kamakshya Narayan Singh Bahadur v. Chohan Ram and\tAnr.<\/a>\n[1953] S.C.R. 108; followed.\nMadan Mohan Singh v. Raj Kishori Kumari , 21 C.W.N. 88,\t 92;\nGobinda Chandra Saha & Ors. v. Sasadhar Mandal, A.I.R.\t1947\nCal. 73, 75 and Rust v. Goodale, [1957] 1 Ch. 33, 42 and 43;\nreferred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 988 and 989
\nof 1964.\n<\/p>\n
Appeals from the judgment and decree dated February 16, 1961
\nof  the Patna High Court in Appeal from Original Decree\t No.
\n390 of 1953.\n<\/p>\n
D.   Goburdhun,\t for  the  appellants (in C.A.\tNo.  899  of
\n1964).\n<\/p>\n
S.   C. Agarwal and R. K. Garg, for the appellants (in C.A.
\nNo. 989 of 1964).\n<\/p>\n
D.   N.\t Mukherjee and S. Mustafi, for respondent No. 1\t (in
\nboth the appeals).\n<\/p>\n
The Judgment of the Court was delivered by
\nBachawat, J. One Harbans Narain Singh was the proprietor  of
\nvillages  Seha and Dhobaha and other villages.\t He  created
\nseveral\t  encumbrances\tover  these  villages  including   a
\nmortgage
\n127<\/span>
\ndated  February\t 10,  1886 in favour of\t Basanti  Bibi,\t two
\nmortgages  dated September 9, 1907 and February 5, 1910,  in
\nfavour of Harprasad Das and a mortgage dated August 2,\t1911
\nin  favour of defendant No. I Ramanandan Lal.  On  June\t 23,
\n1915,  Harbans\tNarain sold the villages to  Mahabir  Missir
\nsubject to the above mortgages.\t Mahabir Missir redeemed the
\nmortgages  in favour of Basanti Bibi and Harprasad  Das\t and
\nbecame\t subrogated   to  their\t rights.    Ramanandan\t Lal
\ninstituted a suit to enforce his mortgage, obtained a  final
\ndecree\tfor  sale,  put the decree into\t execution,  at\t the
\nexecution  sale\t purchased  villages Seha  and\tDhobaha\t and
\nobtained  possession of the villages in 1919 and  1920.\t  In
\n1924, Mahabir instituted suit No. 17 of 1924 to enforce\t his
\nmortgage  lien praying for ratable contribution of his\tdues
\nin respect of villages Seha and Dhobaha from Ramanandan\t Lal
\nand  obtained  a final decree on August 22,  1931.   Mahabir
\ndied leaving his son Kashinath as his legal  representative.
\nKashinath  put\tthe  decree  in suit No.  17  of  1924\tinto
\nexecution.   On\t July  13, 1934,  Ramanandan  Lal  paid\t the
\ndecreetal  dues in respect of village Seha.  On November  4,
\n1935, village Dhobaha was sold in execution of the decree in
\nsuit  No.  17 of 1924 and was purchased\t by  Kashinath.\t  In
\nJune, 1934, Ramanandan Lal through his constituted attorney,
\nMunshi\tSheobaran Lal granted five leases in respect of\t the
\nsuit lands in the village to defendants 2 to 7. At the\ttime
\nwhen  the  leases  were\t created,  Ramanandan  Lal  was\t the
\nmortgagor  in  possession  of  the  suit  lands\t over  which
\nKashinath  had\ta mortgage lien.  One of  the  questions  in
\nissue in these appeals is whether the leases were binding on
\nKashinath.\n<\/p>\n
It  appears that Kashinath obtained a money  decree  against
\nRamatahal  Pandey,  husband  of\t defendant  No.\t 3  and\t  in
\nexecution  of  the  money decree attached  the\tsuit  lands.
\nDefendants  2  to 7 filed claim petitions objecting  to\t the
\nattachment under 0.21, r. 58, CPC.  The claim petitions were
\nallowed\t and  the  lands were released\tfrom  attachment  by
\norders\tof the executing court dated November 20,  1942\t and
\nFebruary  26,  1944.   The executing court  found  that\t the
\nleases were genuine.  Kashinath did not file any suit  under
\n0.21, r. 63, CPC.  One of the questions in these appeals  is
\nwhether\t the  orders passed in the claim  proceedings  under
\n0.21, r. 58 precluded Kashinath from setting up his claim in
\nthe present suit.\n<\/p>\n
On June 11, 1946, Kashinath instituted the suit out of which
\nthese  appeals arise against Ramanandan Lal and the  lessees
\nfor  recovery  of  possession of the suit  lands  and  mesne
\nprofits alleging that the leases were collusive transactions
\nand  were  otherwise  not binding on  him.   The  defendants
\ncontested the suit.  In the meantime, in other\tproceedings,
\nit was declared that Mahabir was a benamidar for Shri Thakur
\nTaraknathji  and  the  deity  was  the\treal  owner  of\t the
\nvillages.  In view of this adjudication, Kashinath lost
\n128<\/span>
\nall interest in the present suit.  By order dated August 25,
\n1952, the deity was added as a coplaintiff in the suit.
\nThe  subordinate  Judge, Arrah, held that  the\tleases\twere
\ngenuine,  were\tgranted by Ramanandan Lal in due  course  of
\nmanagement  and\t were binding on the  plaintiffs.   On\tthis
\nfinding,  he  dismissed the suit.  The\tdeity  preferred  an
\nappeal\tto the High Court of Patna.  The High Court  allowed
\nthe  appeal and decreed the suit.  It held that\t the  leases
\nwere sham transactions were made in contravention of s.\t 65A
\nof  the Transfer of Property Act and were not  binding\tupon
\n‘the plaintiffs.  Before the High Court, it was contended on
\nbehalf of the defendants that the plaintiffs were  precluded
\nfrom  challenging  the leases in view of the  orders  passed
\nagainst\t Kashinath  in the proceedings under 0. 21,  r.\t 58,
\nCPC,   but   the  High\tCourt  rejected\t  this\t contention.
\nDefendants Nos. 2, 6 and 7 and the widow of defendant No.  5
\nhave filed C. A. No. 988 of 1964 and defendants 1 and 4 have
\nfiled  C. A. No. 989 of 1964 under certificates\t granted  by
\nthe High Court,
\nThe  appellants contend that as Kashinath did not  file\t any
\nsuit  under  O. 21, r. 63, CPC, the  adverse  orders  passed
\nagainst\t him  in  the proceedings under O. 21,\tr.  58,\t CPC
\noperated  as  res judicata, and lie and the  deity  who\t now
\nstands\tin his shoes, were precluded from alleging that\t the
\nleases\twere  not  binding  on them.   We  think  that\tthis
\ncontention should be rejected.\tIn view of the orders passed
\nagainst\t Kashinath in the claim proceedings and his  failure
\nto  institute suits under O. 21, r. 63, CPC,  Kashinath\t was
\nprecluded from claiming that he had the right to attach\t the
\nsuit lands in execution of his money decree, but he was\t not
\nprecluded  from claiming that he had the right to  sell\t the
\nlands  in execution of his mortgage decree.  Rules 58 to  62
\nof Order 21, CPC, provide for a summary investigation of the
\nclaims\tand  objections to the attachment  of  any  property
\nattached  in  execution\t of  a decree.\t The  issue  in\t the
\nproceeding  is\twhether\t “such property is  liable  to\tsuch
\nattachment”.   If  the\tclaim is allowed,  the\tproperty  is
\nreleased   from\t attachment  (r.  60).\t If  the  claim\t  is
\ndisallowed,  the  attachment  continues\t (r.  61).   If\t the
\nproperty is subject to mortgage or charge in favour of\tsome
\nperson\tnot in possession, the attachment may  be  continued
\nsubject\t to  such  mortgage or charge (r.  62).\t  The  party
\nagainst\t whom an order is made in the claim  proceeding\t may
\ninstitute  a suit to establish the right which he claims  to
\nthe  property in dispute, but subject to the result of\tsuch
\nsuit, if any the order is conclusive (r. 63).  If no suit is
\nbrought\t under\tr.  63\twithin\tthe  prescribed\t period\t  of
\nlimitation, the order in the claim proceeding is  conclusive
\non  the question whether the property was or was not  liable
\nto  attachment\tand  sale in  execution\t of  the  particular
\ndecree.\t  But the order is not conclusive for all  purposes,
\nsee Kandai Narasimhachariar v. Raghava Padayachi
\n129<\/span>
\nand others().  A claim proceeding under r. 58 is not a\tsuit
\nor a proceeding analogous to a suit.  An order in the  claim
\nproceeding does not operate as res judicata.  It is  because
\nof rule 63 that the order becomes conclusive.  The effect of
\nr.  63 is that unless a suit is brought as provided  by\t the
\nrule,  the  party  against  whom  the  order  in  the  claim
\nproceeding is made or any person claiming through him cannot
\nre-agitate in any other suit or proceeding against the other
\nparty  or  any\tperson claiming\t through  him  the  question
\nwhether\t the property was or was no,- liable  to  attachment
\nand  sale in execution of the decree out of which the  claim
\nproceeding arose, but the bar of rule 63 extends no further.
\nIn  support of the contention that the orders in  the  claim
\nproceedings  operated  as  res\tindicate,  counsel  for\t the
\nappellant  relied  on  several\tdecisions.   In\t Subbier  v.
\nMoideen\t Pitchai(2),  the decree-holder in  execution  of  a
\nmoney  decree  attached\t a debt alleged to  be\tdue  to\t the
\njudgment-debtor.   The garnishee objected to the  attachment
\non  the\t ground that the debt was not due to  the  judgment-
\ndebtor,\t it had been assigned and he had premised to pay  to
\nthe assignee and the amount of the debt was Rs. 300 and\t not
\nRs.  350.  The objection was disallowed.  The attached\tdebt
\nwas sold in execution of the decree and was purchased by the
\ndecree-holder.\t The  decree-holder purchaser then  sued  to
\nrecover\t the  debt.  As the garnishee did not  file  a\tsuit
\nunder  0.  21, r. 63, the order passed against\thim  in\t the
\nclaim  proceeding  became conclusive, and he  was  precluded
\nfrom re-agitating his objections in the suit.  In the course
\nof  his\t judgment, Schwabe, C .J. referred to s. 11  of\t the
\nCode  of  Civil\t Procedure and his  observations  give\tsome
\nsupport\t to the contention of the appellants in the  present
\ncase  that the order in the proceeding under r. 58  operates
\nas   Yes   judicata.   But  we\tcannot\tagree\twith   those
\nobservations.  The order in the summary proceeding under  r.
\n58  does  not operate as res judicata.\tThe reason  why\t the
\ngarnishee  could  not reagitate his objections was  that  in
\nview  of  r.  63 he was precluded from\tasserting  that\t the
\ndecree-holder was entitled to attach and sell the particular
\ndebt on the footing that it was due to the  judgment-debtor.
\nIn Sarju Prasad Missir and others v. Maksudan Choudhuri\t and
\nothers(3),  one Lalji Lal obtained a decree for sale of\t the
\nproperty mortgaged to him.  In execution of the decree Lalji
\nLal  attached  ‘the property.  One Karoal  Narian  Choudhary
\nfiled a petition objecting to the attachment.  ‘By an  order
\ndated  September 14, 1886 passed under s. 278, CPC of  1992,
\ncorresponding to 0. 21\t 58  CPC  of  1908.  file  executing
\ncourt directed that the property   should not be sold  under
\nthe decree obtained by Lalji Lal.  Sarju Prasad, an assignee
\nof  the\t decree executed the decree, at the  execution\tsale
\npurchased the property and subse-\n<\/p>\n
(1) I.L.R. 1946 Mad. 79.\n<\/p>\n
(2) A.I.R. 1923 Mad. 562.\n<\/p>\n
(3)  A.I.R. 1922 P.C. 341.\n<\/p>\n
130<\/span><\/p>\n
quently\t instituted a suit against the heir of Kamal  Narain
\nfor  recovery  of  possession of the  property.\t  The  Privy
\nCouncil held that the order dated September 14, 1886  became
\nfinal  and binding upon Lalji Lal and all  persons  claiming
\ntitle under him.  Sir John Edge observed :-\n<\/p>\n
\t      “The  petition  of objection  was\t a  petition
\n\t      which  the Subordinate Judge had\tto  consider
\n\t      and   dispose  of\t and  any  party   to\tthat
\n\t      proceeding who was dissatisfied with the order
\n\t      which  the Subordinate Judge might make  could
\n\t      have appealed from it.  Lalji Lal was a  party
\n\t      to that proceeding and he did not appeal,\t and
\n\t      the order became final and binding upon  Lalji
\n\t      Lal and upon those who claim title under him.”\n<\/p><\/blockquote>\n
The  observation that the party dissatisfied with the  order
\nmade  under  S. 278 of the Code of  Civil  Procedure,  1882,
\ncould have appealed from the order, seems to have been\tmade
\nper  incuriam.\t It seems that no appeal lay  from  such  an
\norder.\t The  reason  why  Lalji  Lal  was  precluded\tfrom
\ncontending  that the property was liable to be attached\t and
\nsold in execution of the decree obtained by him was that  in
\nthe  absence of a suit under s. 283 of CPC of 1882,  he\t and
\nSarju\tPrasad\t claiming  title  under\t  him,\t could\t not
\nsubsequently contend that the property was liable to be sold
\nin  execution  of the decree.  In the  two  cases  discussed
\nabove,\tthe  adverse orders in the claim  proceeding  became
\nconclusive  on the question whether the property was  liable
\nto attachment and sale in execution of the particular decree
\nthen sought to be executed.  Equally, in the absence of\t any
\nsuit  under  O. 21, r. 63, CPC, the  adverse  orders  passed
\nagainst\t Kashinath conclusively decided that the suit  lands
\nwere not liable to be sold in execution of the money  decree
\nobtained  by him against Ramtahal Pandey.  But those  orders
\nwere  not conclusive on the question whether the lands\twere
\nliable\tto  be\tsold in execution  of  the  mortgage  decree
\nobtained by Kashinath against Ramanandan Lal.
\nOn the merits, the question is whether the leases granted by
\nRamanandan La]. while he was the mortgagor, in possession of
\nthe suit lands were binding on the mortgagee Kashinath.\t The
\nHigh Court held that the leases were in contravention of  s.
\n65A of the Transfer of Property Act, 1882.  Section 65A\t was
\ninserted  in the Transfer of Property Act, 1882 by s. 30  of
\nthe  Transfer of Property (Amendment) Act, 1929, which\tcame
\ninto  force on April 1, 1930 Section 63 of the\tTransfer  of
\nProperty  (Amendment) Act 1929 provided that nothing in\t the
\nprovisions  of s. 30 of the amending Act would be deemed  if
\nany  to\t affect the “terms or incidents of any\tof  property
\nmade  or effected before the 1st day of April,\t1930”.\t Now
\nKashinath was entitled to the rights of the mortgagees under
\nthe mortgages dated February 10,
\n131<\/span>
\n1886, September 9, 1907, February 5, 1910.  All these  mort-
\ngages  were executed before April 1, 1930 and nothing in  s.
\n65A  affected their incidents.\tThe power of the  lessor  to
\nmake  leases binding on the mortgagee-, was an\tincident  of
\nthe mortgages and was not affected by s. 65A.  The  validity
\nof the leases granted by the mortgagor in June 1934 must  be
\ndetermined with reference to the law as it stood before\t the
\nenactment of s. 65A.\n<\/p>\n
In Madan Mohan Singh v. Raj Kishori Kumari(1) Mookerjee,  J,
\nheld  that  a  mortgagor in possession\tmay  grant  a  lease
\nconformable  to usage in the ordinary course of\t management,
\nfor  instance lie may create a tenancy from year to year  in
\nthe case of agricultural lands or from month to month in the
\ncase of houses.\t But he is not competent to grant a lease on
\nunusual\t terms or to alter the character of the land  or  to
\nauthorise  its\tuse in a manner or for a  purpose  different
\nfrom the mode in which he himself had used before he granted
\nthe  mortgage.\tThis view of the law as it stood before\t the
\nenactment  of s. 65A was approved in Raja Kamakshya  Narayan
\nSingh  Bahadur v. Chohan Ram and Another<\/a>(2) and\t this  court
\nheld  that the question whether the mortgagor in  possession
\nhas power to lease the mortgaged property must be determined
\nwith  reference\t to the authority of the  mortgagor  as\t the
\nbailiff or agent for the mortgagee to deal with the property
\nin the usual course of management.  In Gobinda Chandra\tSaha
\nand  others  v.\t Sasadhar Mandal(3), B.\t K.  Mukherjea,\t J.,
\npointed out that normally a permanent lease with rent  fixed
\nin  perpetuity is not sanctioned by the ordinary  course  of
\nmanagement.  He observed —\n<\/p>\n
\t      “The  mortgagor might be within his rights  to
\n\t      create a lease which is from month to month or
\n\t      from year to year as the case might be, but he
\n\t      cannot  grant  a permanent lease with  a\trent
\n\t      fixed  in\t perpetuity.   This  amounts  to  an
\n\t      alienation  of his right to increase the\trent
\n\t      in  future and is as good as the sale  of\t the
\n\t      property\titself.\t This is not  sanctioned  by
\n\t      the ordinary course of management as has\tbeen
\n\t      mentioned\t above\tnor is it warranted  by\t the
\n\t      previous user of this particular property.”\n<\/p><\/blockquote>\n
In the present case, defendants 2-7 were lessees under\tfive
\nleases\tgranted by the mortgagor in June 1934.\t All  ‘these
\ndefendants  claimed to be Permanent lessees with rent  fixed
\nin   perpetuity.   Four\t of  the  leases  were\tgranted\t  by
\nregistered  pattas.In respect of four leases  the  mortgagor
\nreceived  nazrana  or premium.All the  leases  were  created
\nafter  the property was advertised for sale in execution  of
\nthe mortgage decree.  The High Court has found
\n(1) 21 C.W.N. 88, 92.\t(2) [1953] S.C.R. 118,118.
\n(3)  A.I.R.1947Cal.73,75.\n<\/p>\n
132<\/span><\/p>\n
that  the leases were created by the mortgagor in bad  faith
\nwith  a view to cause loss to  the  mortgagee-decree-holder.
\nThe leases were not in the ordinary course of management  of
\nthe mortgagor as the agent or bailiff of the mortgagee,\t and
\nwere not binding on the mortgagee.\n<\/p>\n
On  behalf of the appellants it was argued that\t the  leases
\nmight  not  be\tbinding\t on  Kashinath\twhile  he  was\t the
\nmortgagee, but after- he purchased the property he ceased to
\nbe a mortgagee, and he could not thereafter assert that\t the
\nleases\twere  not binding on him.  This\t novel\targument  is
\ningenious but unsound.\tAn auction-purchaser at a sale\theld
\nin execution of a mortgage decree buys not only the interest
\nof the mortgagor but also the interest of the mortgagee.  If
\nthe lease does not ‘bind the mortgagee, it does not  equally
\nbind  the  auction-purchaser.  It is interesting  to  notice
\nthat  in Rust v. Goodale(1), Harman, J. held that the  right
\nof  the\t mortgagee to treat a tenant of the mortgagor  as  a
\ntrespasser  was a right which passed on sale or\t foreclosure
\nto his assignee.A lease granted by the mortgagor, out of the
\nordinary  course  of management, though not binding  on\t the
\nmortgagee,  is\tbinding\t as between the\t mortgagor  and\t the
\nlessee.\t Such a lessee acquires an interest in the right  of
\nredemption  and is entitled to redeem.\tIf such a  lease  is
\ncreated\t before\t the institution of a suit relating  to\t the
\nmortgage,  the lessee must be joined as a party lo the\tsuit
\nunder 0 34, r. 1, CPC; otherwise he will not be bound by the
\ndecree\tpassed in the suit and will continue to\t retain\t his
\nright  of redemption.  But in view of s. 52 of the  Transfer
\nof Property Act, if the mortgagor grants such a lease during
\nthe pendency of a suit for sale by the mortgagee, the lessee
\nis  bound by the result of the litigation.  If the  property
\nis  sold in execution of the decree passed in the suit,\t the
\nlessee cannot resist a claim for possession by the  auction-
\npurchaser.   The  lessee could apply for being joined  as  a
\nparty  to the suit and ask for an opportunity to redeem\t the
\nproperty.   But\t if  he allows the property to\tbe  sold  in
\nexecution of the mortgage decree and they have now lost\t the
\npresent case, the lessees allowed the suit lands to be\tsold
\nin  execution of the mortgage decree and they have now\tlost
\nthe  right of redemption.  They cannot resist the  claim  of
\nthe  auction  purchaser\t of recovery of\t possession  of\t the
\nlands.\n<\/p>\n
If a mortgagor in possession of the mortgaged property\texe-
\ncutes  a  lease of the property in the\tordinary  course  of
\nmanagement  as the agent or bailiff of the mortgagee  during
\nthe  pendency  of  a suit by the mortgagee  to\tenforce\t the
\nmortgage,  a question may arise whether such a lease  is  in
\nthe eye of the law a lease granted by the mortgagee  through
\nhis agent and therefore binding on him.\t But in the  present
\ncase, that question does not arise
\n(1)  [1957] 1 Ch 33,42,43.\n<\/p>\n
133<\/span><\/p>\n
as  the\t leases\t were not granted by the  mortgagor  in\t the
\nordinary course of management as the bailiff or agent of the
\nmortgagee.\n<\/p>\n
The High Court held that the leases were sham  transactions.
\nWe do not think it necessary to decide this question.\tEven
\nassuming  that\tthe leases were not sham  transactions\tthey
\nwere not binding on Kashinath and the deity.  The High Court
\nrightly decreed the suit.\n<\/p>\n
The  appeals  are dismissed with costs.\t There will  be\t one
\nhearing fee.\n<\/p>\n
Y. P.\t\t\t\t     Appeals dismissed.\n134<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mangru Mahto & Ors vs Shri Thakur Taraknathji … on 8 March, 1967 Equivalent citations: 1967 AIR 2390, 1967 SCR (3) 125 Author: R Bachawat Bench: Bachawat, R.S. PETITIONER: MANGRU MAHTO & ORS. Vs. RESPONDENT: SHRI THAKUR TARAKNATHJI TARAKESHWAR MATH & ORS. DATE OF JUDGMENT: 08\/03\/1967 BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-105528","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMangru Mahto & Ors vs Shri Thakur Taraknathji ... on 8 March, 1967 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mangru Mahto & Ors vs Shri Thakur Taraknathji ... on 8 March, 1967 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"1967-03-07T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2017-05-24T19:42:47+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"20 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Mangru Mahto & Ors vs Shri Thakur Taraknathji … on 8 March, 1967\",\"datePublished\":\"1967-03-07T18:30:00+00:00\",\"dateModified\":\"2017-05-24T19:42:47+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967\"},\"wordCount\":3097,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Supreme Court of India\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967\",\"name\":\"Mangru Mahto & Ors vs Shri Thakur Taraknathji ... on 8 March, 1967 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"1967-03-07T18:30:00+00:00\",\"dateModified\":\"2017-05-24T19:42:47+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Mangru Mahto & Ors vs Shri Thakur Taraknathji … on 8 March, 1967\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Mangru Mahto & Ors vs Shri Thakur Taraknathji ... on 8 March, 1967 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967","og_locale":"en_US","og_type":"article","og_title":"Mangru Mahto & Ors vs Shri Thakur Taraknathji ... on 8 March, 1967 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"1967-03-07T18:30:00+00:00","article_modified_time":"2017-05-24T19:42:47+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"20 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Mangru Mahto & Ors vs Shri Thakur Taraknathji … on 8 March, 1967","datePublished":"1967-03-07T18:30:00+00:00","dateModified":"2017-05-24T19:42:47+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967"},"wordCount":3097,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Supreme Court of India"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967","url":"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967","name":"Mangru Mahto & Ors vs Shri Thakur Taraknathji ... on 8 March, 1967 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"1967-03-07T18:30:00+00:00","dateModified":"2017-05-24T19:42:47+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/mangru-mahto-ors-vs-shri-thakur-taraknathji-on-8-march-1967#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Mangru Mahto & Ors vs Shri Thakur Taraknathji … on 8 March, 1967"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/105528","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=105528"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/105528\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=105528"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=105528"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=105528"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}