JUDGMENT P. Subramonian Poti, J. 1. The plaintiff in a suit for recovery of mortgage money is the appellant in this second appeal. The mortgagor was one Narayanan Nambiyar, the deceased husband of the first defendant and father of defendants 2 to 7. In the year 1951 he mortgaged his share in the tarwad properties to the plaintiff for a sum of Rs. 800/-. Subsequently in the partition of the tarwad by the final decree for partition the plaint items were allotted to the share of Narayanan Nambiyar and therefore the mortgage security thereafter happened to be on the plaint items. On the date of the mortgage Ext. A1 plaint items 1 and 2 were outstanding on a verumkozhu lease. Subsequently, in the year, 1960 Narayanan Nambiyar executed a fresh lease Ext. A2 corresponding to Ex. B 3 in favour of the 8th defendant who had obtained an assignment of the earlier verumkozhu lease substantially reducing the rent originally fixed for the plaint items 1 and 2. The lease so executed Ext. A 2 was a kuzhikanom lease and it was in the contemplation of the parties to change the nature of the property pursuant to the lease. 2. The only question which was in controversy in the suit as well as in the appeal was the validity of Ext. A 2 lease executed by the mortgagor after the mortgage. The mortgages in the present suit for sale sought to avoid Ext. A2, the lease executed by Narayanan Nambiyar over plaint items 1 and 2 in favour of the defendants, in as much as the terms of the lease were unfavourable to the mortgagee, and according to the mortgagee would seriously affect his interests as a mortgagee in the property. This was disputed by the 8th defendant who contended that the mortgagor had power to execute Ext. A2 lease. The courts below have concurrently found in favour of the 8th defendant and have held that it is within the competency of the mortgagor to execute Ext. A2. It is this that is challenged in the second appeal by the plaintiff. 3. The courts below have not properly considered the applicability of S.65A of the Transfer of Property Act to the execution of Ext. A2 by Narayanan Nambiyar in favour of the 8th defendant. A2. It is this that is challenged in the second appeal by the plaintiff. 3. The courts below have not properly considered the applicability of S.65A of the Transfer of Property Act to the execution of Ext. A2 by Narayanan Nambiyar in favour of the 8th defendant. There is no reference at all to this provision in the judgment of the appellate court and though the section is referred to in the judgment of the Trial Court that has not been properly considered by that court. The question in issue falls to be decided on the basis of the applicability of S.65A of the Transfer of Property Act to present case. 4. S.65 A was incorporated in the Transfer of Property Act by Amendment Act XX of 1929. Prior to such amendment there were different views held by courts as to the power of a mortgagor to lease mortgaged property. The Bombay High Court held the view that the mortgagor cannot lease the property after the execution of the mortgage without the concurrence of the mortgagee (See Rustomji Dorabji v. Keshavji Damji, AIR 1926 Bom. 567). There was also a view held by some courts that lease could be executed only in respect of English mortgages. The Calcutta High Court took the view that it was open to the mortgagor to lease a mortgaged property in the ordinary course of prudent management. The view expressed by Mookerjee J. in Madan Mohun Singh v. Raj Kishori Kumari, XXXIX Indian Cases 182 at 185 column 1 has been referred to in many subsequent decisions and followed. It was held: "The true position thus is that the mortgagor in possession may make a lease conformable to usage in the ordinary course of management, for instance, he may create a tenancy from year to year in the case of agricultural lands or from month to month in the cases of houses. But it is not competent to the mortgagor to grant a lease on unusual terms, or to alter the character of the land or to authorise its use in a manner or for a purpose different from the mode in which he himself had used it before he granted the mortgage. But it is not competent to the mortgagor to grant a lease on unusual terms, or to alter the character of the land or to authorise its use in a manner or for a purpose different from the mode in which he himself had used it before he granted the mortgage. In the case before us, therefore, if there are any defendants who have obtained settlement from the mortgagor after the mortgage but before the commencement of the mortgage suit they can resist the claim of the plaintiff only if they establish that the leases in their favour were granted on the usual terms, in the ordinary course of management; such a plea, if established, and, it must not be overlooked, that the burden of proof in his matter is upon them, will furnish a complete answer to the claim of the plaintiff." The Supreme Court has accepted the view expressed by Mookerjee J. in the above decision as representing the true position. After quoting the passage which I have extracted above the Supreme Court held in its decision in Raja Kamakshya Narayan Singh Bahadur v. Chohan Ram, 1953 (IV) SCR 108 at 118: "The question whether the mortgagor in possession has power to lease the mortgaged property has got to be determined with reference to the authority of the mortgagor as the bailiff or agent for the mortgagee to deal with the property in the usual course of management. It has to be determined on general principles and not on the distinction between an English mortgage and a simple mortgage or on considerations germane to S.66 of the Transfer of Property Act. Having regard therefore to the position that S.66 has no application to leases of the mortgaged property, the decision of Jenkins C. J. in Balmukund v. Motilal (1915) 20 CWN 350 and the cases following that line of reasoning do not govern the question before us. While we are on this subject we would like to emphasise that it is for the lessee if he wants to resist the claim of the mortgagee to establish that the lease in his favour was granted on the usual terms in the ordinary course of management. Such a plea if established and it must not be overlooked that the burden of proof in this matter is upon him would furnish a complete answer to the claim of the mortgagee. Such a plea if established and it must not be overlooked that the burden of proof in this matter is upon him would furnish a complete answer to the claim of the mortgagee. If the lessee failed to establish this position he would have certainly no defence to an action at the instance of the mortgagee." Though the Supreme Court decided this question long after the amendment of the Transfer of Property Act by incorporation of S.65A it was the Act as unamended that was considered in that case. The view expressed by the Supreme Court in the above decision has been subsequently referred to and followed in the decision of the Supreme Court repotted in Mangru v. Taraknathji AIR 1967 SC 1390 . 5. The amendment to the Transfer of Property Act by incorporation of S.65Awas really intended to give effect the view expressed by Mookerjee J. in XXXIX Indian Cases 182. Therefore the position remains the same as what was held to be the true position by the Supreme Court approving the dictum in the Calcutta case. In M.P.M.S. Firm v. Ko Pyu AIR 1932 Rangoon 113 Chief Justice Page has noticed that the view expressed in the Calcutta case has been embodied in S.65A of the Transfer of Property Act. 6. In a case governed by S.65A of the Transfer of Property Act the mortgager could lease the property lawfully in this possession only in the ordinary course of management of the property concerned. Every such lease has to reserve the best rent that can reasonably be obtained. The burden of proving that such a lease is in the ordinary course of management and reserves the best rent is on the lessee. If that is the position, in this case there is absolutely no evidence to show the execution of a lease Ext. A2 in favour of an assignee of the leasehold right under an earlier lease was in the ordinary course of management or that the best rent was reserved. The original lease was a verumkozhu lease and the fresh lease Ext. A2 is a kuzhikanam lease. The rent reserved under the earlier lease was 130 seers of paddy and under Ext. A2 the rent reserved is very much less, only 60 seers. Therefore the burden is heavily on the 8th defendant to show that Ext. The original lease was a verumkozhu lease and the fresh lease Ext. A2 is a kuzhikanam lease. The rent reserved under the earlier lease was 130 seers of paddy and under Ext. A2 the rent reserved is very much less, only 60 seers. Therefore the burden is heavily on the 8th defendant to show that Ext. A2 was a lease executed in the ordinary course of management and that the rent that was stipulated under Ext. A2 was the best rent that could be obtained. None has been examined in the suit and there is no evidence whatsoever as to the prudence of the transaction. Therefore if S.65 A is applicable Ext. A2 lease will have to be avoided so far as the plaintiff was concerned. But the answer to this by the 8th defendant is that S.65A has no application to the present case. I will examine this question. 7. According to counsel for the respondent 8th defendant one of the necessary requisites for the applicability of S.65A is that the lease should have been executed by a mortgager who is lawfully in possession. According to the 8th defendant, Narayanan Nambiyar who executed Ex. P.2 was not in possession as the property was outstanding on lease even on the date of mortgage and therefore S.65A will have no application. It may be noticed that it is S.65A(1) which recognises the power in the mortgagor to create leases so as to be binding on the mortgagee. If the power is to be decided de hors the provisions of S.65A then also the 8th defendant would not in any way be in a better position. This is because prior to the enactment of S.65A it was well recognised that the mortgagor's power to lease was subject to restrictions one of which was that it must be proved by the lessee that the lease was in the ordinary course of management. In a case before the Madras High Court reported in Moidunni Haji v. Pootheri Illoth Madhavan Nair AIR 1933 Mad. 876 certain kanoms executed by the mortgagor in favour of certain leases who held under earlier leases were held to be not binding on the mortgages as being not in the ordinary course of management though the earlier lease was binding on the mortgagee. The same is the case here. 876 certain kanoms executed by the mortgagor in favour of certain leases who held under earlier leases were held to be not binding on the mortgages as being not in the ordinary course of management though the earlier lease was binding on the mortgagee. The same is the case here. Apart from this I see no difficulty in applying S.65 A itself to the present case. The requirement that the mortgagor should be in possession in order to attract S.65A refers to the point of time at which the lease is executed and not the point of time when the mortgagee itself was created by the mortgagor. Ext. A2 is a fresh lease in favour of the person who held under the earlier lease. It does not purport to be a renewal. The earlier was a verumkozhu lease. Ext. A2 is a kuzhikanom lease. The terms of Ext. A2 are different from the terms of the earlier lease. Therefore, necessarily Ext. A2 must be taken to have been executed by Narayanan Nambiyar after obtaining possession by implied surrender of the earlier lease held by the 8th defendant. Though actually Narayanan Nambiyar might not have come into physical possession of the property at the time of execution of Ext. A2, in view of the execution of Ext. A2 which is a fresh lease, the earlier lease must be deemed to have been surrendered and if so at the time he executed Ext. A2 he was in possession of plaint items 1 and 2. This, I think, is sufficient for the purpose of this case. I therefore hold that S.65A will have application to the present case. If so, Ext. A2 lease executed by Narayanan Nambiyar in favour of the 8th defendant will not be binding on the plaintiff. No doubt, the 8th defendant will be entitled to the benefit of the earlier lease of 1916. Even the plaintiff has accepted the fact that the 8th defendant is entitled to the rights under the earlier lease, and therefore there is no question of the 8th defendant not being able to obtain the benefit of such lease. What he would not obtain is only the rights under the lease Ext. A2 which has been executed by Narayanan Nambiyar long after the execution of the mortgage. 8. What he would not obtain is only the rights under the lease Ext. A2 which has been executed by Narayanan Nambiyar long after the execution of the mortgage. 8. In the result, I allow this second appeal setting aside the decrees of the courts below and hold that plaintiff is entitled to a decree for sale for the mortgage money as against the suit properties without the reservation of Ext. A2 right in favour of the 8th defendant. He will be entitled to recover the amounts as prayed for in the plaint together with future interest from date of decree on the decree amount at 6% per annum till date of recovery. The appellant will obtain his costs in the appeal from the respondents.