B.G. Geidt and Ernest William Ormond, JJ.

1. The subject-matter of this litigation is a chuck namedKirtana Kanali. It was conveyed to one Braja Lal Singh by a deed executed inOctober 1878. Braja Lal was one of five brothers, the names of the other fourbeing Madan Mohan,. Radha Madhab. Kartic and Nanda Lal. The main question thathad to be tried in these suits was whether, by the conveyance of October 1878,Braja Lal became alone entitled to the chuck, or whether it was conveyed to himon behalf of all the five brothers.

2. At the time of the conveyance the chuck was subject to amokarari lease. In August 1884, three of the five brothers, namely, Braja Lal,Radha Madhab and Kartic, mortgaged the chuck, together with two otherproperties, to one Surja Narain Gosain. Some two years after words in December1886 Braja Lal purchased the mokarari interest in execution of a decreeobtained against the holders of the mokarari (enure. In 1896 Surja NarainGosain brought a suit and obtained a decree on his mortgage, and in April 1902Kirtana Kanali was sold in execution of the mortgage decree and purchased bythe appellants. The appellants then took delivery of possession, but they foundthemselves opposed by Nanda Lal and by the son of Madau Mohan, these being thetwo out of the five brothers, who had not joined in the mortgage to SurjaNarain. They wore also obstructed by Mohesh Mandal, who claimed to havepurchased Braja Lals share in execution of a decree obtained on a mortgagesubsequent to that of Snrja Narain Gosain. The obstruction led to three claimcases under Section 335 of the Code of Civil Procedure, and they were alldecided against the present appellants, who accordingly brought three suits,against Nanda Lal, against Madan Mohans son and against Mohesh Mandal. In allthe suits these appellants alleged that Braja Lal was entitled to the whole ofthe chuck, and the defence was that Braja Lal had only 1/5th of the chuck,which was held by all the live brothers in undivided shares, and that thereforethe appellants had in execution of Surja Narain Gosains mortgage decreepurchased only 3/5ths of the chuck.

3. As regards the suit brought against Mohesh Mandal theappellants also alleged that they were entitled to the possession of itnotwithstanding Mohesh Mandals purchase in execution of his mortgage decree,and they also alleged that Mohesh had lost the light of redemption.

4. Two other suits connected with the above transactionswere tried at the same time as the suits brought by the appellants. One ofthese suits, namely suit No. 324 of 1903, was brought against the appellants byKulada Prasad Singh, the son of Radha Madhab, one of the mortgagor., to haveit declared that the mokarari, which Braja Lal had purchased, did not pass bythe sale held in. execution of Surja Narain Gosains mortgage. Another suit wasbrought against the appellants by Rakhal, son of Madan Mohan, for mesne profitsfor the period during which he was out of possession in consequence of thepresent appellants obtaining possession from July 1902 to July 1903.

5. The Munsiff decided all the five suits in favour of thepresent appellants, but on appeal the Subordinate Judge reversed the Munsiffsdecision and dismissed the suits of the present appellants and decreed thesuits brought by Kulada and Rakhal. The finding of the Subordinate Judge is thatchuck Kirtana Kanali belonged to all the five brothers, and that therefore whatthe present appellants had purchased was only 3/5ths of the chuck. This is afinding of fact, which binds this Court on second appeal, and the learned vakilfor the appellants did not seriously attempt to controvert that finding.

6. Two questions were mainly discussed at the hearing ofthese appeals. The first was, whether, when Braja Lal purchased the mokarari ofthe chuck, that mokarari merged in the shikmi tenure, which he and his brothersare found to have held. There is no dispute that Braja Lids purchase of themokarari interest was made not on behalf of himself alone, but on behalf of allthe five brothers, and the shikmi as well as the mokarari tenures therefore becamevested at one time in the same persons. The Subordinate Judge has held thatSection 111, Clause (d) of the Transfer of Property Act, does not apply,because the lease was for agricultural purposes, and therefore under Section117 was excluded from the * operation of Section 111.

7. It appears to us to be doubtful whether the lease was foragricultural purposes or not. There is an expression, which supports the viewthat the lease was taken for cultivating the land and reclaiming the jungle anddigging tanks and therefore was an agricultural lease; but, however that maybe, we think that under the authority of the Privy Council in the case ofKishen Datt Ram v. Mumtaz All Khan I.L.R. (1879) Cal. 198, the mokarariinterest did merge in the superior tenure. Their Lordships point out thatmerger would take place under the English law and would be in accordance withthe principles of equity, justice and good conscience. We need only quote thepassage on page 2C9, which is as follows: "Again, what followed on thepurchases Had they been made by or on behalf of a talukdar holding under anabsolute, as distinguished from a mortgage, title, the tenures would, as amatter of course, have merged in the taluk."

8. Further, even if there was no merger, we are of opinionthat the effect of the purchase of the mokarari interest would be to enhancethe security. It would be an accession to the mortgaged properties underSection 70 of the Transfer of Property Act, and in support of this view we mayrefer to the case, which has been already cited, decided by their Lordships ofthe Privy Council as well as to the cases of Shyama Churn Bhuttacharjee v.Ananda Chandra Das (1880) 3 C.W.N. 323 and Ajudhia Prasad v. Alan Singh I.L.R.(1902) All. 46. In our opinion therefore the appellants are entitled to the3/5ths of the mokarari interest as well as to 3/5ths of the shikmi interest inchuck Kirtana Kanali.

9. The other question discussed at the hearing of theseappeals is whether Mohesh Mandal had lost his right of redemption. The groundput forward by the appellants that he had lost the right of redemption is thisThat though he was not a party to the mortgage suit instituted by Surja Narain,still be came in after the properties had been advertized for sale, and he thenapplied that as he had purchased 1/5th of the chuck, the remaining 4/5thsshould be first put up to sale in execution of Surja Narains decree and hisown 1/5th should be sold only in case the other 4/5ths should be foundinadequate. After the sale was concluded he also applied * for 1/5th of thesale proceeds. We do not think that these facts deprived Mohesh of his right toredeem. He was no party to Surja Narains mortgage suit, and therefore couldtake no objection to the validity or otherwise of the mortgage. We are ofopinion that the Subordinate Judge was right in holding that Mohesh Mandal hadnot lost his right of redemption. At the same time we may observe that theamount on payment of which Mohesh is entitled to redeem is not a matter whichcan be dealt with in these suits, as Mohesh put forward no claim to redeem.

10. As regards the fifth suit brought by Rakhal for mesneprofits, it is conceded that in the view we take as to the extent of. BrajaLals interest in the chuck, the appeal in that suit must fail.

11. The result therefore is that the appeal from appellateorder No. 292 of 1905 is dismissed with costs. In the other appeals theappellants succeed in part. They will be entitled to possession of 3/5ths bothof the shikmi tenure and of the mokararl interest in chuck Kirtana Kanali,subject, however, to the right of Mohesh Mandal to redeem the 1/5th share,which he purchased, in a suit properly framed for that purpose. The 1/5thshare, which Mohesh is entitled to redeem, is of course 1/5th of the 3/5thswhich the plaintiffs appellants are by this decision declared entitled torecover. As the appeals have succeeded in part, we direct that each party dobear its own costs in these appeals, except in appeal No. 292.

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Surja Narain Mandalvs. Nanda Lal Sinha (13.07.1906 -CALHC)