GAMBANGI APPLASWAMY NATDU Vs. BEHARA VENKATARAMANAYYA PATRO

JUDGEMENT

(1.) The short question involved in this appeal is whether upon redemption of a usufructuary mortgage a tenant-mortgagee could be directed to deliver actual or physical possession of the mortgaged property to the lessor-mortgagor By reason of the grant of a limited special leave the appeal has been confined to that question.

(2.) Facts relevant to the question may be stated:One Behara Audinarayana Patro, the original owner of suit property executed two usufructuary mortgage deeds dated 30-8-1939 and 25-8-1942 in favour of the first defendant Sambangi Thavitinaidu, who was then a sitting tenant of that property. In 1951 the mortgagor filed a suit for redemption of the mortgages and obtained a preliminary decree on 31-12-1952. Subsequently, the mortgagor died and the respondents were brought on the record as his legal representatives. On 21-10-1963 the respondents filed an application for passing a final decree by way of ascertainment of the amount due and for delivery of possession upon deposit of entire dues so ascertained. The application was resisted by the first defendant and other defendants (the appellants before us) on several grounds. Inter alia the appellants contended that even after depositing the entire amount found due to them no decree directing delivery of actual or physical possession in favour of the respondents should be passed but delivery of symbolical possession alone should be ordered inasmuch as the appellants' possession of the suit property as a tenant or lessee could not be disturbed. In other words, the appellants contended that on redemption the original relationship of landlord and tenant would revive which needed to be protected. The learned District Munsif, Parvatipuram took the view that the relationship of landlord and tenant had ceased to subsist after the mortgages came into existence, that the mortgage-bonds did not provide that the said relationship would be restored or revived upon redemption and that therefore the respondents were entitled to delivery of physical possession upon their depositing the entire dues payable to the appellants. The tenant-mortgagees (the defendants) preferred an appeal against the order of the learned District Munsif and the learned Additional District Judge Srikarulam who heard the appeal took the contrary view relying upon a decision of Andhra Pradesh High Court in Varada Bongar Raju v. Kirthali Avatharam, AIR 1965 Andh Pra 86 and held that the defendants-mortgagees were sitting tenants of the mortgaged property at the time of the execution of the mortgage-deeds, that there was nothing in those deeds to suggest that their rights as lessees were extinguished either by merger or implied surrender, that the landlord-tenant relationship continued to exist after termination of mortgagor-mortgagee relationship and therefore the respondents were not entitled to delivery of physical possession, he, therefore, allowed the appeal.

(3.) The respondents preferred a second appeal to the Andhra Pradesh High Court and the learned single Judge relying upon a subsequent decision in P. Satyanarayana v. Janardhan Chetty, ILR (1967) Andh Pra 1341 which had distinguished the earlier decision, reversed the view of the learned Addl. District Judge and restored the decree passed by the District Munsif. The learned Judge took the view that the question whether the relationship of landlord and tenant would subsist even after the execution of the usufructuary mortgage depended upon the intention of the parties to be gathered from the terms of the mortgage transaction and held that on the terms of mortgage-deeds there was no doubt that the landlord-tenant relationship had ceased to exist after the relationship of mortgagor and mortgagee came into existence and the mortgage bonds had not specifically provided that the landlord and tenant relationship would be restored after the redemption of the mortgages. A Letters Patent appeal preferred by the tenant-mortgagees to the Division Bench of the High Court failed and hence this appeal to this Court.