Thadani Ag. C. J. - This is a second appeal from the judgment & decree of the learned Subordinate Judge, Sylhet (now Cachar), dated 27 7-43, by which be affirmed the judgment & decree of the trial Ct. which had decreed the pltf.'s suit for a declaration that a deed of lease (tahulnama) dated the 9th of Magb, 1941 B. S executed in favour of one Surjyat Kumar Dhar by one Basanta Kumar Dbar, was not binding upon the pltf., Girish Chandra Ghose. [2] The facts material to the appeal are these. Basanta Kumar Dhar, deft, in the suit, had borrowed a sum of Rs. 1500 from the pltf., Girish Chandra Ghose, on the 3rd of Bhadra, 1334 B. S8 on 3 mtge bonds of Rs. 500 each. In due curse, he brought a suit for sale of the mortgaged property to recover a sum of Rs. 3300 due to him on the mtge. bonds & obtained a decree for sale, & ultimately purchased the mortgaged property for Rs. 2935 in execution of his mtge. decree, & obtained delivery of possession through Ct. Shortly afterwards, he brought 3 rent suits on the strength of his purchase, against Surjya Kumar Dhar who in those suits alleged that he had obtained a settlement of 21 hala and 6 kears of land from Basanta Kumar Dhar (khe mtgot.) by a tahutnama, dated the 9th of Magh 1341 B. S. The suits were with, drawn by the pltf. & were accordingly dismis­sed. The plfef. then brought the present suit against Basanta Kumar Dhar and Surja Kumar Dhar aa defts. 1 & a reapectiveJy contending that the tahutnama execufed by deft 1 in favour of deft. 2 was fraudulent & collusive created to defeat the pltf.'s claim on the three mtges & as such, it was not binding upon him deft. 1 the mtgor., did not contest the suit. Deft. 3 contend­ed that the tahutnama was a bona fide lease granted to him by deft. 1 in the ordinary course of management of the properties, reserving the best rent & was, therefore, binding on the pltf. [3] Upon the pleadings, the trial Cfc. framed the following issues: 1. Is the suit maintainable in its present form ? 2. Is the suit bad under S. 42, S. R. Act ? 3. Is the tahutnama in question binding on the pltf.? 4. [3] Upon the pleadings, the trial Cfc. framed the following issues: 1. Is the suit maintainable in its present form ? 2. Is the suit bad under S. 42, S. R. Act ? 3. Is the tahutnama in question binding on the pltf.? 4. Is it a fraudulent & collusive document created by the deft. 1 with intent to defeat & delay his credi­tors ? 5. What relief, if any, is the pltf. entitled to ? [4] On the first issue, the trial Ct. held that S. 53, T. P. Act, had no application & that the suit was maintainable in the form in which it was brought. [5] On the second issue, the trial Ct. held that the pltf. was entitled to bring a suit for a declaration, as prayed for, without seeking further relief. On the third issue, it held that the mtge. security was rendered "hopelessly" insufficient by the creation of a lease in farour of deft. 2 & was therefore, not binding on the pltf. It also took the view that the lease in question was not made in the ordinary course of management of the property & that the best rent was not, reserv­ed. On the fourth issue, the trial Ct. came to-the conclusion that the lease in question was created by deft. 1 in collusion with deft. 2, a nephew of his, with a view to defraud, defeat & delay his creditors. In the result, it passed a decree in favour of the pltf. for a declaration that the lease, Ex. G, was not binding on the pltf. [6] The lower appellate Ct. in the main agreed with the conclusions of the trial Ct. & affirmed its judgment & decree, but held that the lease in question was not a void, but a voidable, lease. [7] Against the decision of the lower appellate Ct., the present second appeal was preferred to the Calcutta H. 0 & it appears that during the pendency of the appeal before that; Ct. an appln. purporting to be an appln. made by the pltf., was made for the withdrawal of the suit. The-appln. was granted by Das J. Shortly after­wards, it was brought to the noticeof Das J. that the appln. for the withdrawal of the suit was not made by the pltf. an appln. purporting to be an appln. made by the pltf., was made for the withdrawal of the suit. The-appln. was granted by Das J. Shortly after­wards, it was brought to the noticeof Das J. that the appln. for the withdrawal of the suit was not made by the pltf. & he issued a Rule calling upon the parties to show cause why the order passed by him should not be set aside & the appeal heard on merits, The Rule was made abso­lute by Das J., on 24-7 1947 In 1948, on the establishment of the Assam H. C., the appeal was transferred to this Ct. [8] Mr. Ghose for the applfc. has contended that the suit at brought by the pltf.-mtgee., namely, for a declaration to the effect that the lease executed in favour of deft. 2 by deft. 1 was not binding upon him was incompetent. His contention is that the present suit should have been one for sale & possession of the mortgaged property having regard to the fact that the applt., admittedly a lessee of the mtgor., was not made a party -o the suit for sale of the mortgaged pro­perty. We think there is considerable force in this contention. A lessee from a mtgor. who is , lawfully in possession of the mortgaged proper­ty, is a parson "entitled to sue for redemption within the meaning of S. 91, T. P. Act. Order 3i, B. 1, Civil P 0. lays down : "Subject to the provisions of this Code, all persona hav­ing an interest either in the mtge security or in the right of redemption, shall be joined as parties to any suit relating to the mlge. Mr. Ghose rightly contended that as the applfc. was not joined as a party in the pUf.'s suit for sale of the mortgaged property, his right (0 re­deem the property remains unaffected & that the pltf. cannot bring a suit against him framed in such a manner as to deprive him of the right to redeem the property/as undoubtedly the suit,, as framed, would have that effect. [9] The question therefore, for our considera­tion is whether a mtgee. cannot bring a suit against him framed in such a manner as to deprive him of the right to redeem the property/as undoubtedly the suit,, as framed, would have that effect. [9] The question therefore, for our considera­tion is whether a mtgee. who has instituted a suit for sale of the mortgaged property & obtained a decree without making the lessee a party to the suit for sale, can sue the lessee in a subsequent unit for a mere declaration that the lease is not binding upon him, without giving him an opportunity to redeem the property? Neither a. 65 (A) nor s."66, T. P. Act, refers to the right of a mtgee. to bring a suit. All that 8. 654 says is that: "subject to the provisions of sub-a. (2), a mtgor. while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mtgee". It might be conceded that where a mtgor. while lawfully in possession of the mortgaged property, acts in contravention of the provisions of sub-s. (2) bf B. 65A T. P Act, the lease so created by the mtgor. will not be binding upon the mtgee. But if a lease is not binding upon the mtgee. it is wholly unnecessary for him to bring a suit for a declara turn that it is not binding upon him he can either 'affirm the lease or ignore it. Their Lordships of the P. C. in Bijoy Gopal Mukerjee v. Krishna Mahishi Debi, 34 Gal. 3S9 : (84 I. A, 87 P. C ) have laid down the principle that where a transaction between A. & B is not binding upon C, it is not necessary for C to bring a suit for a declaration to the effect that the transaction is not binding upon him. In the P. 0. case, a reversioner sued on the death of a Hindu widow for possession of the pro­perty of her husband of which she was in possession as a Hindu widow & of which she had granted a lease for a term extending beyond her own life. It was held that the widow's alienation was not absolutely void, but was prima facie voidable at the election of the reversionary heir, who my affirm it or treat it as a nullity without the intervention of any Ct. It was held that the widow's alienation was not absolutely void, but was prima facie voidable at the election of the reversionary heir, who my affirm it or treat it as a nullity without the intervention of any Ct. there being nothing to set aside or cancel as a condition precedent to his right of action. [10] Borrowing the language of their Lordships of the P. C. we think a mtgee. may affirm or treat a lease granted by his mtgor. in favour of a lessee, as a nullity, there being nothing to set aside or cancel as a condition precedent 10 his right of 'action. A mtgee's right of action in the present case arose out of his being kept out of possession by the lessee by virtue of his lease & not by virtue of the existence of the lease which the mtgee may ignore without intervention of any Ct. But before he can successfully sue a lessee foe possession, he must give him an opportunity to redeem the property which he can only do in a suit for sale, to which the lessee is a party. [11] Mr. Ghose has relied upon a decision of the Calcutta H. C. in Radha Perthad v. Monohur Das, 6 cal. 317 : (7 0. L. B 293), In which a suit was brought by one Monohur Das against Radha Pershad Misser, to set aside a zurpeshgi lease of a certain village, which had been mortgaged to the pltf. by one Syed Haq, & to recover his possession of the property under mtge. Garth, C. J. deliver­ing judgment of the D. B observed: "It is clear that the covenant entered into by the mtgor. in the mtge-bond of 1867 did not render invalid the zurpeshgi lease which was subsequently granted. We have held in other oases that such a covenant only creates a, personal liability as between the mtgcr & the mtgee. Then it is also clear, that the subsequent sale under the decree of 1873 did not put an end to the zurpeshgi lease, or affect the interests of the zurpeahgidar. The pltf. has, therefore,, no right to sue for has possession of the property as. against the zurpeshgidar. Then it is also clear, that the subsequent sale under the decree of 1873 did not put an end to the zurpeshgi lease, or affect the interests of the zurpeahgidar. The pltf. has, therefore,, no right to sue for has possession of the property as. against the zurpeshgidar. His only course would be to bring a suit against the zurpeshgidar to have his right declared to sell the property to satisfy his mtge-debt, so as to give the zurpeshgidar an opportunity of redeeming. This suit is one of a totally different character. The pltf.. has all along contended that he is entitled to khas posses­sion, & that the zurpeshgi lease is void, & we should be entirely changing the nature of his claim if we were to allow him to say & try it on the other basis. The judgment of the lower Ct. must, therefore, be reversed & the pltf' suit dismissed with costs in both Cts. [12] We wish to emphasise that in the case to which we have just referred, the pltf. brought a suit for possession & alleged that the zuepesbgi leass was void. In the case before us, the suit is not one for possession, but for declaration. & although-the pltf. had contended that the lease was void & the trial Ct. had accepted that Contention, the appellate Ct. negatived it & held that the lease was merely voidabl- & not void We think the decision of the Calcutta H. C. reported in Radha Pershad v. Monohur Das, 6 cal. 317 ; (7 C. L. E 293), is authority for the proposition that where a mtgee. has failed to implead the lessee of the mortgaged property in a suit brought by him for sale of the mortgaged property, any subsequent suit brought against the leesae by the mtges-purchaser which has the effect of depriving the lessee of his right to enjoy the mortgaged property in pursuance of his lease created by the mtgor. in lawful posses­sion of the property under mtge , can only be one for sale or declaration of his mtgot to sell the pro­perty, thereby affording an opportunity to the-lessee to redeem the property. [13] In Kamkhya Narain Singh v. Barman Alt, 23 Pat 648 : (A. I. R. (32) 1945 Pat 106), it was held "A lessee from the mtgor. though his lease may not be-valid & binding against the mtgee. [13] In Kamkhya Narain Singh v. Barman Alt, 23 Pat 648 : (A. I. R. (32) 1945 Pat 106), it was held "A lessee from the mtgor. though his lease may not be-valid & binding against the mtgee. is still a person having-an interest in the mortgaged property within the meaning of S. 91, T. P. Act, because his lease is certainly good as against the mtgor. He is, therefore, entitled to sue for redemption & is, as such, a necessary party under 0. 34, B. 1, Civil P. C., to a suit on the mtge. His right of redemption is not lost by reason of the purchase of the mortgaged property by the mtgee in execution of a mtge. decree obtained by the latter in a suit to which the former was not a party." The position of the lessee vis-a-vis the mtgee, in the case before us is precisely the position which, the learned Judges of the Patna H. C. were called upon to consider in the case to which we referred- [14] The Patna case it instructive from another point of view, in that the suit brought was one for recovery of khash possession or, in the alternative, for sale of the village for recovery of the proportionate mtge. money chargeable on it. The trial Ct. in the Patna case, while dismissing the-pltf's. prayer for khash possession, had allowed his alternative prayer for sale of the property in question. The learned Judges of the Patna H. C. affirmed the judgment & decree of the trial Ct., & referred to the case of Mt. Nand Kuer v. Kunj Bihari Lai, 8 Pat. L. T, 229: (A. I. a. (14) 1927 pat. 411) where "a mtgee obtained a mtge. decree without impleading a mokarraridar of the mortgaged property in the suit & pur­chased the property in execution of the decree, & being 'unable to get possession, brought a gait for possession -against the mokarrarldar after giving him an opportunity to redeem." In Balmukund v. Moti Lal, 20 Gal. W. N 350 : A. I. R. (8) 1916 Gal. 870), Sir Lawrence Jenkina, C. J., with whom Holm wood, J., agreed, observed: " It has not been, nor could it be maintained that the 'leases did not at least entitle the lessee to redeem. " [15] In Moidunni Haji v. Madhavan Nair, A. I. B. (20) 1933 Mad. W. N 350 : A. I. R. (8) 1916 Gal. 870), Sir Lawrence Jenkina, C. J., with whom Holm wood, J., agreed, observed: " It has not been, nor could it be maintained that the 'leases did not at least entitle the lessee to redeem. " [15] In Moidunni Haji v. Madhavan Nair, A. I. B. (20) 1933 Mad. 876 : (148 I. 0. 1115) the suit brought was one for sale against a mtgor. & other persons including the lessees, & not for a declara­tion that the leasaa were not binding upon the mtgae. purchaser. [16] An analysis of the cases to which we have referred in tins judgment leads to the following conclusions : (1) A lessee from a mtgor lawfully in possession of the "property under mtge. is a person interested in redeeming the mortgaged property within the meaning of 8. 91, T. P. Act & O. 34, B. l, Civil P. 0., (2'. Where in a suit for sale of "the mortgaged property, the lessee who is interested in redeeming the mortgaged property within the meaning of S. 91, T, P. Act & O. 34, R. 1, Civil P. C., has not been impleaded, his right to redeem is unaffected by the decree for sale of the mortgaged property. (3) A subsequent suit filed by a mtgee. purchaser against; the lessee of the mortgaged property, for a mere declaration, is not competent. The suit must be one for sale, so as to afford an opportunity to the lessee to redeem the mortgaged property. [17] The learned Advocate for the resp. has relied upon certain decisions of the Bombay & Calcutta H. Cts. in support of his contention that a suit for a declaration, without possession or either consequential reliefs, is competent under certain circumstances, & has referred ua to Kunj Behari v. Reshav Lai, 28 Bom. 567: (6 Bom. L. B. 475); Waman Rao v. Rustomji, 21 Bom 701; Lobe Nath v. Keshab Ram, 13 Gal 147 & Satischandra v. Satyacharan, 14 Cal. W. N. 576: (5 I. C. 531). In none of these eases, however, the pltf. was a mtgee. purchaser, nor was the suit by a mtgee. purchaser against a leasae who had acquired a lease from the mtgor. lawfully in possession of the mortgaged property during the pendency of the mtge. W. N. 576: (5 I. C. 531). In none of these eases, however, the pltf. was a mtgee. purchaser, nor was the suit by a mtgee. purchaser against a leasae who had acquired a lease from the mtgor. lawfully in possession of the mortgaged property during the pendency of the mtge. These cases ate, therefore, no authority for the facts which have given rise to the present appeal. [18] Before we conclude our judgment, it is necessary to refer to a point raised by Mr. Ghose en the strength of which he contends that the suit is liable to be dismissed. It appears that subse­quent to the filing of this appeal in the Calcutta H. C., the pltf. mtgee. transferred the property by a registered sale-deed to the mtgor. Mr. Ghcse has argued that the pltf. mtgee. having lost his dual rights of a mtgee. & a mtgor. acquired upon the purchase of the mtged property by this transfer, is not entitled to any decree. Mr. Sen for I he resps, has, however, contended that this transfer during the pendency of the appeal in the Calcutta H. C. is hit by 8. 52, T. P. Act. In the view we have taken of the competency of the pltf' a suit as brought, we think it is unnecessary to deal with this aspect of the case. [19] Mr. Ghose has further argued that this Ct, can take notice of the admission of the pld. mtgee, during the course of the arguments that he has effected a transfer of the property in favour of the mtgor. He has referred us to a case reported in Abdul Rahman v. Sarat Ali, 22 0. L. j. 412 : (A. I. R. (3) 1916 Cal 710), in which it has been held that : "the Ct. may, in order to shorten litigation or to do complete justice between the parties, take notice of events which have happened since the Institution of the proceed­ing & afford relief to the parties on the basis of the altered conditions." But, as we have observed, the transfer may conceivably be hit by the doctrine of 'lis pendens' as embodied in 8. 52, T. P. Act. [20] For reasons stated in our judgment, the appeal is allowed with costs throughout. The pltf's suit will stand dismissed. 52, T. P. Act. [20] For reasons stated in our judgment, the appeal is allowed with costs throughout. The pltf's suit will stand dismissed. [21] Ram Labhaya J.-I have had the advantage of leading the judgment of the learned Chief Justice (Acg.) I agree that the appeal be allowed & the suit dismissed with costs. I would add, with great respect, that the only remedy of a mtgee. who purchases the property at an auction sale in execution of a mtge. decree, against the lessee of the mtged property not impleaded in the suit is not a suit for sale. A suit for declaration that he is entitled to bring the property to sale for the recovery of the mtge. money can al-o be instituted by him. This is what was held in Radhi Pershad v. Monohur Das, 6 cal. 317: (7 C.L.R. S93). It was laid down in that case that the covenant entered in the mtge. bond against transfer did not render the lease invalid. It was also laid down that the subsequent sale under the decree would not put an end to the zurpeshgi lease or affect the interests of zurpeshgidar. The pltf. the auction purchaser could, therefore, bring a suit to have his right declared to sell the property to satisfy his mtge. debt. He certainly may bring a suit for sale] direct. Bui his remedy is not limited to a suit for sale. If he institutes a suit for a declaration of his right to sell the property for" recovery of his mtge. money, he does give the lessee an opportunity to redeem. This was the view taken in the' Calcutta case & with this I am in respectful agreement. [22] The suit in this case was for a declaration that the lease was wholly void. It was a colour­able transaction & the property never vested in the ostensible lessee. This plea has not prevailed in the lower appellate Ct. The learned J. in appeal came to the conclusion that the lease offended against the provisions of 8. 65A, T. P. Act &, there-tore, it was not such a bona fide transaction that a mtgee. may be bound by it. On that basis he affirmed the finding of the Ct. below, which was to the effect that the lease in question was created by deft. 65A, T. P. Act &, there-tore, it was not such a bona fide transaction that a mtgee. may be bound by it. On that basis he affirmed the finding of the Ct. below, which was to the effect that the lease in question was created by deft. 1 in consultation with deft, a, his brother's son, merely to delay & defeat his creditors. [23] The necessary implication of the finding arrived at by the learned Subordinate J. is that the lease as between the lessor & the lessee was binding but as the rent reserved was extremely low, the provisions of 8. 654, T. P. Act, were con­travened. He did not go to the length of holding that the lease in question was merely a paper transaction under which the lessee got no rights. In these circumstances, a declaration that the lease \«8 wholly void could not be granted to the pltf. [24] The question now is whether in the suit as laid, a declaration that pltf. can sue for sale of the [mtge. property may be granted. Though the plif's. suit is for a declaration of title, is based m the ground that the lease was a sham transac­tion, It would be altering the nature of this suit [if a declaration is given to the pltf. that the lease, though binding between the lessor & the lessee, woes not affect his right to bring a suit for sale of 'the property for recovery of his mtge. money by reason of the fact that the lessee was not made a party to his previous suit for sale of the property. The suit, therefore, as laid, must fail, [26] During the pendency of the appeal in this Ct., the pltf. transferred all his rights to his origi­nal mtgor. It has been urged that this develop­ment in the case may be taken notice of by the Ct. The learned counsel for the applt. pointed out that the Ct has the discretion to do so. While it Jig correct that in order to shorten litigation a Ct. may take ink) consideration events happening after the institution of the suit, it surely is not bound to do so & may decide the case on the facts existing on the date of the institution of the suit. While it Jig correct that in order to shorten litigation a Ct. may take ink) consideration events happening after the institution of the suit, it surely is not bound to do so & may decide the case on the facts existing on the date of the institution of the suit. In the particular ease before us, the conclusion arrived at is that the declaration legally perceivable cannot be granted in the suit as laid. [26] In the circumstance? it is not necessary to consider the effect of events which occurred after the institution of the suit. Appeal allowed.