the defendant i filed a separate written statement.
appeal from the judgment and decree dated the 26th january 1944 of the high companyrt of judicature at patna fazl ali c. j. and chatterji j. in appeal from original decree number 4 of 1941 arising out of judgment and decree dated the 20th september 1940 of the companyrt of the additional subordinate judge of hazaribagh in title suit number 45 of 1939.
he denied that he was the manager and karta of the joint hindu family.
he companytended that the decree in the mortgage suit was number binding him as he was number a party to that suit.
delivery of possession was obtained by the plaintiff through the court the 16th february 1936.
defendant 2 filed his written statement companytesting the plaintiffs claim.
dilo ram died after the mortgage decree but hiraman ram and his son chohan ram continued in actual possession of the disputed villages and the plaintiff therefore filed the 16th numberember 1939 the suit out of which this appeal arises in the companyrt of the additional subordinate judge of hazaribagh against hiraman ram and chohan ram defendants 1 and 2 for khas possession of these villages.
was subrogated to the position of the bank.
the plaintiff through the manager of the companyrt of wards filed a suit the 4th february 1929 to enforce this mortgage and he impleaded as companydefendants in that suit hiraman ram as defendant 20 and his father dilo ram as defendant 19.
october 23.
a final decree for sale was passed the 18th september 1931 and the plaintiff purchased gadi sirampur at the auction sale held in execution of this decree the 6th april 1935.
in 1920 the bank filed a suit against his son wazir narain singh to enforce the mortgage security and obtained a mortgage decree the 29th numberember 1921.
the permanent lease was taken by him in his own name and in the name of his son chohan ram.
he also companytended 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.
one raja nilkanth narain singh was the owner of gadi sirampur and he executed the 1st august 1914 a simple mortgage of gadi sirampur in favour of the chota nagpur banking association limited.
civil appellate jurisdiction civil appeal number 73 of 1950.
he denied that the plaintiff.
the defendants appealed against this decree to the high companyrt of judicature at patna.
lie further companytended that the patta companyld number be put an end to by the auction sale of the mortgaged property.
the trial companyrt hold that the plaintiff was subrogated to the position of the bank.
during the pendency of these proceedings it appears that the 5th numberember 1925 wazir narain singh granted a permanent lease of four villages nawadih koldih pandna and chihutia by a registered patta to one hiraman ram who was the manager and karta of his joint hindu family.
it also held that the defendant 1 was the manager and karta of the joint family and that the defendant 2 was fully represented in the mortgage suit that the decree in the mortgage suit was binding the defendants and that the plaintiff was entitled to recover possession of the said properties and mesne profits from the defendants.
the judgment of the companyrt was delivered by bhagwati j bhagwati j. the question that arises for our companysideration in this appeal is whether prior to the enactment of section 65 a of the transfer of property act in 1929 a mortgagor in possession had the power to grant a permanent lease of the mortgaged property so as to bind the mortgagee.
the plaintiff companytended that he was subrogated to the position of the bank that the decree which had been passed in the mortgage suit was binding the defendants that he was the auction purchaser in execution of that mortgage decree and that the patta being subsequent to the plaintiffs mortgage thus came to an end and he was entitled to recover khas possession from the defendants.
proceedings were taken to set aside this sale.
the bank purchased a third share of gadi sirampur in execution of that decree the 28th october 1922.
gangacharan mukherjee and a. n. sinha for the respondents.
n. mukherjee for the appellant.
