SYED IMDAD Vs. R RAMASWAMY

JUDGEMENT

(1.) The question for consideration in this second appeal is as to whether the appellant- defendant must be held to have surrendered his leasehold right in the suit premises when he took the same on mortgage under the deed dated 30-6-1975, Ext. P. 2.

(2.) The Trial Court has held that there was a merger of leasehold right of the appellant-defendant when he became the usufructuary mortgagee. Therefore, the respondent-plaintiff was entitled to redemption and actual possession of the suit premises. In the appeal preferred by the appellant-defendant, the lower Appellate Court has discarded the theory of merger in view of a decision of the Supreme Court in Shah Mathurdas Maganlal & Co., v Nagappa Shankarappa Malaga & Others (A.I.R. 1976 S.C. 1565) and has further held that having regard to the recitals contained in the mortgage deed, there has been surrender of leasehold right; therefore, it is not open to the appellant-defendant to resist the suit for redemption and actual possession. Accordingly, the lower Appellate Court has affirmed the decree of the Trial Court on the ground that there has been surrender of leasehold right.

(3.) Sri Srinivasa Iyer, learned counsel appearing for the appellant, submits that admittedly the appellant-defendant was a tenant of the suit schedule premises before it was mortgaged to him, and he had paid an advance of Rs. 1,000/- as recorded in Ext. D.1 dated 5-5-1972 and that amount had to be returned at the time of vacating the premises and that there is no recital in the mortgage deed about the said advance and further, the mortgage deed also does not recite that on redemption actual delivery of possession of the premises to the Mortgager should take place; therefore, the decision of the Supreme Court in Shah Mathurdas Maganlal's case is not applicable to the facts of the present case; hence the lower Appellate Court is not right in law in holding that there has been a surrender of the tenancy right by the appellant-defendant.