NARAYANA PILLAI Vs. SANKARAN NAMBOODIRIPAD

JUDGEMENT

(1.) The 2nd defendant is the appellant. In execution of the decree passed in the case the decree holder applied for delivery of possession of the decree schedule properties. 2nd defendant resisted the application on the ground that the delivery of possession is to be stayed by virtue of the provisions of Act VIII of 1950. The execution court upheld the contention and ordered stay of the delivery. In appeal the lower appellate court reversed the order of the learned Munsiff and directed delivery of possessions of the properties.

(2.) The lower appellate court was of the view that the provisions of Act VIII of 1950 did not apply to this case since the lease deed sued upon was one executed by the mortgagee at the time when the properties were outstanding on mortgage. The suit properties belonged to the plaintiffs family. They were outstanding on lease with the defendant. While so the plaintiffs family executed a mortgage of the properties to one Bhadrakali Mattappalli Illom. After the mortgage the lessees attorned to the mortgagees and executed a lease in their favour on 25.8.1105. While the properties were thus continuing in the possession of the defendants on lease, the plaintiffs family obtained a release of the mortgage right. The lessees thereafter attorned to the plaintiffs family and paid rent to them. After some time the plaintiff as karnavan of the family brought the suit on the footing of the lease deed dated 25.8.1105 for eviction and recovery of possession of the properties. These facts are clearly borne out by the averments in the plaint in this case. A decree as prayed for followed. It was on the basis of this decree that delivery of possession of the properties was sought for in execution. The learned advocate for the respondent argues that when a lessee from the plaintiffs family executed a new lease in favour of the mortgagees, the prior lease in their favour terminated and a surrender of their possession under the original lease was implied and the possession of the lessees thereafter could be deemed only as one under the lease executed by the mortgagees. It is therefore contended that the possession of the defendant is under the mortgagees and they could not be deemed to be holding under a single transaction as contemplated in the definition of the term holding in the Act. This argument overlooks one important aspect that after the mortgagees released the properties to the plaintiffs family the lessees attorned to them and paid rent to them which was accepted. In this case, by virtue of the release of the mortgage whatever interest the mortgagee lessor had over the properties was surrendered in favour of the plaintiffs family and they obtained all the interests of the lessor and possessed all lessors rights. Consequently the lessees attorned to them and paid the rent to them which was accepted. This is clearly an acknowledgement of the tenancy by the plaintiffs family. The plaintiffs and ordered stay of the delivery. In appeal the lower appellate court reserved the order of the learned Munsiff and directed delivery of possession of the properties.

(3.) The lower appellate court was of the view that the provisions of Act VIII of 1950 did not apply to this case since the lease deed sued upon was one executed by the mortgagee at the time when the properties were outstanding on mortgage. The suit properties belong to the plaintiffs family. They were outstanding on lease with the defendants. While so the plaintiffs family executed a mortgage of the properties to one Bhadrakali Mattappalli Illom. After the mortgage the lessees attorned to the mortgagees and executed a lease in their favour on 25.8.1105. While the properties were thus continuing in the possession of the defendants on lease, the plaintiffs family obtained a release of the mortgage right. The lessees thereafter attorned to the plaintiffs family and paid rent to them. After some time the plaintiff as karanavan of the family brought the suit on the footing of the lease deed dated 25.8.1105 for eviction and recovery of possession of the properties. These facts are clearly borne out by the averments in the plaint in this case. A decree as prayed for followed. It was on the basis of this decree that delivery of possession of the properties was sought for in execution. The learned advocate for the respondent argues that when the lessee from the plaintiffs family executed a new lease in favour of the mortgagees, the prior lease in their favour terminated and a surrender of their possession under the original lease was implied and the possession of the lessees thereafter could be deemed only as one under the lease executed by the mortgagees. It is therefore contended that the possession of the defendants is under the mortgagees and they could not be deemed to be holding under a single transaction as contemplated in the definition of the term 'holding in the Act. This argument overlooks one important aspect that after the mortgagees released the properties to the plaintiffs family the lessees attorned to them and paid rent to them which was accepted. In this case, by virtue of the release of the mortgage whatever interest the mortgagee lessor had over the properties was surrendered in favour of the plaintiffs family and they obtained all the interests of the lessor and possessed all lessors rights. Consequently the lessees attorned to them and paid the rent to them which was accepted. This is clearly an acknowledgement of the tenancy by the plaintiffs family. The plaintiffs suit for eviction was based on the very lease transaction acknowledged by his family. As between the mortgagees and their lessees the defendants, it cannot be said that the defendants were not holding the immovable property in question under a single transaction by which a leasehold right in the property was created and possession of the property was transferred by one person in favour of another, and that it does not constitute a holding as defined in S.2 of the Act. It was this identical lease that was acknowledged by the plaintiffs family after the release of the mortgage in their favour and on the basis of which the plaintiff as karnavan of the family sued for the recovery of the properties with future rent. The suit was therefore one for the recovery of possession of a holding and proceedings in execution of the decree passed in such a suit for recovery of possession of the holding, so far as they relate to delivery of possession of the holding has therefore to be stayed as enjoined under S. 4 of the Act unless there is a bar to the application of the Section, on account of the limitation imposed by the proviso (a) to that section. We are therefore unable to agree with the view of the lower court that Act VIII of 1950 is not applicable.