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Thakur Das And Ors. vs Chunni

High Court Of Judicature at Allahabad|15 December, 1875


1. The lease is not a lease merely for agricultural purposes, but a transfer of the interest of the proprietor for a term of years. Is it a violation of the condition against alienation? It has been held that such conditions are introduced to protect the lien created by the mortgage, and that a transfer made in contravention of the condition is not absolutely void, but voidable so far as it is in defeazance of the mortgagee's rights. In the present case the mortgagees have obtained a decree for the sale of the estate in satisfaction of the loan. The existence of the lease may induce purchasers to offer a less price of the property than they would offer if they could obtain immediate possession. On the other hand, the lease may be an arrangement highly beneficial to the owner of the estate and thus a substantial increment to its value. The mortgagees will have obtained all that in equity they are entitled to, if the Court gives them a declaration that the lease will not be binding on a purchaser in execution of the decree, unless he desires its continuance. The decrees of the Courts below will be modified accordingly, but as the appeal substantially fails, we must order the appellant to bear the respondents' costs.
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Thakur Das And Ors. vs Chunni


High Court Of Judicature at Allahabad

15 December, 1875
  • Pearson
  • Turner