CVENKATESHIAH Vs. MVENKATAKRISHNIAH

JUDGEMENT

(1.) This appeal has been fully argued before me by the learned Advocates for both the parties. The facts which are necessary to be set out for understanding the position of this appeal may be shortly stated as follows:

(2.) The suit was a suit for redemption of a mortgage. The mortgage in question came into existence sometime in the year 1894. One of the points in dispute between the parties before me is whether or not the said mortgage on its true construction, is a simple mortgage or a usufructuary mortgage. Before the said mortgage was executed the mortgagees were already in possession of the property in question by virtue of a lease executed by the mortgagors in their favour. The mortgage deed in question was executed during the continuance of the said lease and by the terms of the said mortgage deed the mortgagees were entitled to appropriate the rent which was payable to the mortgagors under the said lease towards interest due on the said mortgage. The lease thereafter came to an end. I should mention that on this point namely, whether or not the lease came to an end, there is some dispute amongst the parties before me in this appeal. However, both the Courts below proceeded on the footing that the lease had come to an end. In spite of the fact that the lease had come to an end the mortgagees continued to be in possession of the mortgaged property. The present suit has been filed by the mortgagors -- rather the representatives of the original mortgagors -- for redemption of the mortgage. The suit was filed on the basis that the mortgagors were entitled to redemption of the mortgage and get back the possession of the mortgaged property. The first Court passed a decree for redemption but not for possession. The lower Appellate Court reversed the said decision and held that the plaintiffs were entitled also to possession of the mortgaged property. The present appeal has been filed by the mortgagees against the said decision of the lower Appellate Court.

(3.) Sri Krishnamurthi, appearing on behalf of the Appellant raised several grounds in support of this appeal. In the first place, he contended -- this perhaps was his principal contention in this appeal -- that the mortgage in question was nothing more than a simple mortgage and not a usufructuary mortgage. If that is so, then according to him the plain-tin's were only entitled to a decree for redemption and not entitled to a decree for possession. He argued before me, and I must confess that there is considerable force in that argument, that the possession which the mortgagees retained even after the termination of the lease cannot be said to be a possession as contemplated in Section 58 of the Transfer of Property Act, that is to say, it cannot be said to be the possession of a usufructuary mortgagee. In other words, he contended that in spite of the fact that the mortgagees retained possession of the property in question, they cannot be said to be usufructuary mortgagees. The learned Advocate urged before me that delivery of possession in order to be construed as a usufructuary mortgage must be part of the mortgage transaction itself. In other words, such delivery must be given as an incident to the transaction of mortgage. If, therefore, according to him, the mortgagee comes in possession of the property not at the time of the mortgage and not as an incident of the mortgage, such possession cannot make the mortgage a usufructuary mortgage. In the' premises, Sri Krishnamurthi urged before me that only a decree for redemption, as is usually passed in the case of a simple mortgage, can be passed in this suit and not a decree for possession as well.