NARAYAN VISHNU HENDRE Vs. BABURAO SAVALARAM KOTHAWALE

JUDGEMENT

(1.) This is an appeal by special leave against the judgment and order of the High Court of judicature at Bombay, dated 11-12-1987 in Second Appeal No.643/81 and the main question which arises for consideration is whether there was an implied surrender of the tenancy by the appellants-defendants in favour of the respondent-plaintiff at the time when the respondent-plaintiff executed a mortgage of the premises in favour of the appellants.

(2.) The father of the appellants-defendants, namely Vishnu Malba Hendre (hereinafter referred to as Vishnu) was a tenant in respect of the front portion of House No.115, Rawiwar Peth, Phaltan. The said house was owned by Baburao Savalaram Kothawale, the original plaintiff, now represented by his legal heir. The said house was mortgaged by the respondent-plaintiff in favour of Vishnu by three different deeds which were styled as conditional sale-deeds. By the first deed dated 16-4-1952 for a consideration of Rs.2,000/- the tront portion of the house was transferred and by the other two deeds, possession of the rear and the middle portions were transferred for Rs.1,200/- and Rs.2,000/- respectively. The documents, inter alia, provided that in case the respondent-plaintiff returned the amounts within six, seven and nine years respectively, then Vishnu was to recover the property and in case the said amounts were not paid within the stipulated period, then the deeds were to be treated as sale out and out. After the execution of the third document. Vishnu created a tenancy in favour of the respondent-plaintiff in respect of the middle portion of the house and a rent note was executed on March 18, 1953. The respondent-plaintiff failed to pay the rent and the Vishnu filed a suit for recovery of the said rent and the same was decreed in March, 1956.

(3.) In the year 1957, Vishnu died and thereafter, the appellants, who were his legal heirs, filed a suit in 1958 against the respondent-plaintiff for recovery of possession of the middle portion of the said house on the ground of default of payment of rent. The said suit was decreed in 1959. The result of this was that the appellants-defendants secured the possession of the entire house, consisting of three different portions.