INDIRA Vs. SUBAIDA BEEVI

JUDGEMENT

(1.) THIS revision petition arises out of a petition filed under S.11 of the Kerala Agriculturists 'Debt Relief Act,( Act 11 of,1970 ).The trial court in its order found that the present petitioner was already in possession as per a rental arrangement and so in spite of redemption the tenancy would revive.Therefore that court refused to allow the respondent herein to recover possession by a decree which entitled him to pay off 2/3 mortgage amount in usual instalments with interest.The respondent took up the matter in appeal to the District Court,Kottayam.The learned District Judge did not agree with the finding of the first court that the tenancy right will revive.According to the District Court there is an implied surrender of the earlier lease.It was said that the recitals in Ext.A -1 would show a clear case of merger.The valuable right that the petitioners could advance can only be under the provisions of the Rent Control Act.But then a usufructuary mortgage had been executed which the tenant had accepted.The document indicated an implied surrender and there is no express covenant for revival of the pre existing tenancy.The mortgagor,namely,the present respondent will therefore be entitled to get recovery of possession of the property.Hence in modification of the trial court 's order the appellate court passed a decree allowing the respondent to recover possession of the room concerned.

(2.) THIS order is challenged in this revision petition.According to the revision petitioner the court below ought to have followed the decision of this court in Cheria Thomman v.Avira Ittoop 1966 KLT 680 as the possession of the property has already been with the mortgagee under a different and previous transaction.The mere making of the mortgage would not extinguish the earlier transaction.According to him the tenancy continues and there was no merger of that right of the mortgage created.

(3.) IN an earlier case in Godasankara Valia Raja v.Tharappan Vareed 1961 KLT 138 Justice Velu Pillai held that if a certain relationship exists between two parties in respect of a subject matter and a new relationship arises as regards the same subject matter and that if the two relationships cannot coexist as being inconsistent and incompatible,that is to say,if the latter can come into effect only on the termination of the earlier,that would be deemed to have been terminated in order to enable the latter to operate.In fact these observations are from a quotation from the decision of the Travancore - Cochin High Court in Raman Velu v.Lekshmi 1953 KLT 442(by Subramonia Iyer,C.).Justice Raghavan in the subsequent case Cheria Thomman v.Avira Ittoop 1966 KLT 680 dealing with the reasoning in Raman Velu v.Lekshmi 1953 KLT 442 as quoted in Godasankara Valia Raja v.Tharappan Vareed 1961 KLT 138 stated that this proposition if closely scrutinised,may probably result in the conclusion that even if the party wants the earlier relationship only to be suspended,it might not be possible,because the later relationship can come into operation only if the earlier relationship vanishes,in other words,the later right can come into effect only on termination of the earlier.....in order to enable the latter to operate.The learned Judge then said that obviously such a result would not have been contemplated because as Justice Velu Pillai himself pointed out that the question has to be answered primarily on the terms of the subsequent document and in the circumstances.Justice Raghavan then observed: Therefore,whatever might be the legal force of the decision of Velu Pillai,J .,and the decisions followed by the learned Judge regarding two relationships of the same type(I mean,for example,an earlier and a subsequent lease ),and whatever might have been the correctness of those decisions prior to the pronouncement of the Supreme Court,the decisions can no more be said to give a correct exposition of the legal position regarding a superior and an inferior right.In such a case,both the rights will exist separately,unless there is a clear intention to replace the inferior by the superior,i e .,to merge the inferior in the superior,or it was to the interest of the person,in whom the rights unite,to have merged them. In a decision of the Supreme Court in Shah Mathuradas Manganlal and Co.v.Nagappa Shankarappa Malaga and others AIR 1976 SC 156 in such transactions as to whether the earlier right was extinguished,whether the merger has taken place or whether the earlier right continued have all been considered in detail.In that case there was a mortgage with possession of a property that had earlier been leased out to the mortgagee.There are the relevant recitals in the deed as quoted in the case: I have given you the house site in possessory mortgage in consideration of the aforesaid amount.The said property is in your possession as the last tenant by the date 6th November 1953.The possession thenceforth is confirmed by this Deed of Possessory Mortgage.Hence you are to either use the house site and shop premises for home(personal)purpose or let it to anybody.The income that may be received by giving the property on rent is to be appropriated by you towards the interest on the said amount.I shall not pay you any interest separately.I shall not ask for the accounts in respect of the income of the house site from you.I am to pay all the Government dues,I am also to carry out repairs of all sorts to the house premises,and I shall do so.If I fail to pay Government dues and if I do not defray the costs of the repairs you are to pay all the said Government dues and defray the costs of the repairs.The aforesaid amounts which you may have to pay and spend will be paid by me to you together with interest at the rate of 12 annas twelve per cent per month.The above mortgaged property is charged with the liability of repaying the aforesaid amounts.The period of this document is 10 years from 7th November,1953.I shall pay you the aforesaid amount within the said period and redeem the house site from the mortgage.If I fail to do so you are to carry on the 'vehiwet 'of the house site under the above agreement.If you do not wish to keep the amount with me beyond the above period,you are to sell the said mortgaged property through court and recover the entire amount due and payable to you. The Supreme Court said that the deed of mortgage shows the features indicating that there was surrender of tenancy and the appellant(therein)was only a mortgagee.The High Court found that there was a surrender of tenancy right.No particular form of words is essential to make a valid surrender.A surrender may be oral.A surrender may be express although delivery of possession as such is not necessary for surrender in the facts and circumstance of a given case.In the case concerned delivery of possession was immediately followed by a redelivery of possession by the appellant as mortgagee.The court was of the opinion that the mortgage deed establishes beyond doubt that the effect of the deed was inconsistent with the continuance or subsistence of the lease because the parties themselves stipulated that the lease was to exist only upto 6th November,1953.On the redemption of the mortgage the respondent had a right to recover possession both on the terms of the mortgage deed and under S.62 of the Transfer of Property Act.The court further said that for a merger to arise,it is necessary that a lesser estate and a higher estate should merge in one person at one and the same time and in the same right,and no interest in the property should remain outside.In the case of a lease the estate that is in the lessor is a reversion.In the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor.Therefore,there cannot be a merger of lease and mortgage in respect of the same property since neither of them is a higher or lesser estate than the other.The court also said that S.111 of the Transfer of Property Act in clause(e)and(f)deal with surrender,and in clause(d)with merger.Clause(d)states that lease in immovable properties determines in cases the interest of the lessee or the lessor in the whole of the property becomes vested at the same time in one person in the same right.When a leasehold and a reversion coincide there is a merger of a lesser estate in the greater.The leasehold is the lesser estate,for it is carved out of the estate of the owner,which is the reversion.The lesser estate is merged in the greater.The lesser determines and merges in the reversion.If the lessor purchases the lessee 's interest,the lease is extinguished,as the same man cannot be at the same time both landlord and tenant.The interests of the lesser and of the lessee must be in the whole of the property,otherwise there is no merger.The interest of the lessor and the lessee in the whole of the property should become vested at the same time in one person in the same right.Thus a lease is not extinguished because the lessee purchases a part of the reversion.The court then added: A surrender under clauses(e)and(f)of S.111 of the Transfer of Property Act,is an yielding up of the term of the lessee 's interest to him who has the immediate reversion of the lessor 's interest.It takes effect like a contract by mutual consent on the lessor 's acceptance of the act of the lessee.The lessee cannot,therefore,surrender unless the term is vested in him;and the surrender must be to a person in whom the immediate reversion expectant on the term is vested.Implied surrender by operation of law occurs by the creation of a new relationship,or by relinquishment of a possession.If the lessee accepts a new lease that in itself is a surrender.Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor.Relinquishment of possession operates as an implied surrender.There must be a taking of possession,not necessarily a physical taking,but something amounting to a virtual taking of possession.Whether this has occurred is a question of fact.In the present case if the mortgagor was not able to redeem the appellant mortgagee was to enjoy the property in accordance with the terms of the mortgage and also to sell the property for recovery of debts.