LAWS(GJH)-1972-2-6

VOHRA HABSU Vs. SHAH CHHAGANLAL DEVACHAND

Decided On February 24, 1972
VOHRA HABSU Appellant
V/S
SHAH CHHAGANLAL DEVACHAND Respondents

JUDGEMENT

(1.) Defendant No.6 - tenant of the mortgagee- has filed this appeal as both the Courts have while passing the decree for redemption of the suit mortgage ordered the defendants to deliver actual possession of the mortgaged property Mr. shah for the tenant at the outset tried to challenge the fact that the mortgage was duly proved. Mr. Shah cannot be permitted to do so as he is claiming title only under the mortgagees. Once the mortgagees passed Purshis, Ex.47, admitting the suit mortgage, redemption decree was rightly passed. The only question would be whether Khas possession would be given or such possession as this very property was capable of because of the terms of this very mortgage, but that question could surely be agitated by this tenant defendant No.6. Under the terms of the mortgage deed in question it is provided that possession was delivered of the house in question and the mortgagees could use or let the suit property or get the rental income in lieu of interest. The mortgagors plaintiffs would have no right to that rental income. The term was of 25 years. It is also agreed that at the end of the term when the house was returned on repayment of the mortgage debt, the rental income during the period would belong to the mortgages and their heirs while the plaintiffs mortgagors would have no right to that rental income. It was further stated that at the expiry of the term on acceptance of the mortgage dues, the mortgagees will return the house in question to the mortgagors. Therefore, it is very clear that his mortgage conferred specific power on the mortgagees to induct the tenant in the suit house and earn rental income in lieu of interest during the continuance of the mortgage and the rental income was to be of the mortgagees and their heirs. Therefore, when such express power is conferred by the mortgage deed to enable the mortgagees to induct the tenant, the tenure of these tenants could never be conterminous with the mortgagees' interest. The only effect of redemption mortgagees had a right to take would thereafter be taken by the mortgagors. Therefore, the very nature of this mortgage revealed because of its express stipulation that a redemption was not intended between the parties by way of delivery of Khas possession but only the symbolic delivery of possession when a tenant had been lawfully inducted by the mortgagee in view of the express conferment of that power. The case would be analogous to power of attorney holder inducting the tenant. Even if thereafter the power of attorney is cancelled the tenancy would not come to an end. the legal position in this connection is well settled that a person can never give a better title than what he has. Therefore, when a mortgagee inducts a tenant, such tenant's interest would be conterminous with the interest of the mortgagee. The recognised exceptions, however to these general principles are:

(2.) Mr. Christie, however, vehemently argued that their Lordships' ratio is applicable only to such a case where after the termination of the mortgagee's interest the mortgagor elects to continue tenancy. If that was the intention, in that case there would be a fresh direct tenancy. Therefore, their Lordships' ratio is clearly applicable to a case where the concurrence need not be necessary at the time of the lease, if general power is conferred on the mortgagee to induct the tenant. In such a case it is not because of the relationship of the mortgagor and the mortgagee that the mortgagee inducts the tenant but because of the express power conferred on him. The only difference between the express power and when the mortgagee inducts a tenant because of the liability under Section 76(a) is that in the case of an ordinary tenant who is inducted under the contractual power the tenancy would not come to an end because the mortgage was redeemed, while in the other case where the tenant was inducted in ordinary course of bonafide prudent management, the tenancy would come to an end, especially in urban properties as pointed out by their Lordships. Index Note the aforesaid decision of all India Film corporation their Lordships approved the ratio of two earlier decisions in Mahabir Gope v. Harbans Narain Singh, 1952 SCR 775 =(AIR 1952 SC 205) and Asaram v. Mst. Ram Kali, 1958 SCR 986 = ( AIR 1958 SC 183). In Mahabir Gope's case, in para 7 their Lordships pointed out as under:

(3.) In Dinkar Bhagwant v. Rau Babaji (1957) 59 Bom LR 101 the Division Bench consisting of Bavdekar and Gokhale, JJ., in terms observed at pages 114-115 that if it was intended to argue that any lease which was created by the mortgagee in possession was binding upon the mortgagor after the redemption, there must be found either a statutory power in the mortgagee to make such a lease or an express power. Am express power could obviously be given by the mortgage itself. In such a case the lease would be created by a mortgagee as binding upon the mortgagor, that is, not because of the provisions of Section. 76(a) of the Transfer of Property Act or any analogous provision of the English law applicable to agricultural leases, but because there was express power conferred by the mortgage document upon the mortgage under which he was undoubtedly entitled to lease the property. In that case there was no such special power conferred on the mortgagee in possession to let the property and no stature was shown conferring such power. Consequently, it was held that it was not correct to say that the lease which was created in that case did not come to an end along with the redemption of the mortgage. Even at page 115 the Division Bench rightly pointed out that there might be exceptions when leases created by the mortgages either in exercise of statutory or express power might be binding on the mortgagor after redemption. Mr. Christie, however, vehemently relied upon the decision in Bhanshali Khushalchand Shamji v. Sha Shamji Jivraj 59 Bom LR 684 = (AIR 1958 Bom 53), where M.C. Shah, J., had followed the general principle because there was no such express power conferred under the mortgage deed and, therefore, the tenants' interest would come to an end being conterminous with the mortgagee's interest at the time of redemption.. In such a case naturally the Rent Restriction Act could never apply by giving protection because there was no landlord-tenant relationship. Therefore, that decision could hardly help Mr. Christie when there is express power conferred as in the present case. In Madhavji Megji v. Lalji, 12 Guj LR 980 = (AIR 1972 Guj 37) Dave J. has in terms considered this question after interpreting All India film Corporation Limited's ratio, (1969) 3 SCC 79 =( AIR 1969 NSC 185), that where the mortgage deed confers such a power the tenancy would not come to an end. Such a case was one of the exceptions recognised by their Lordships because concurrence of the Mortgagor could be found from the mortgage deed itself. At page 997 our learned brother rightly pointed out that if the tenancy was not automatically terminated on the redemption of the mortgage, the tenancy would continue until the mortgagor terminated the same by a valid notice under the Transfer of Property Act, Such a tenant would have the protection of the Bombay Rent Act because on the redemption of the mortgage the interest of the mortgagee reverted in the mortgagor and he could be the person entitled to receive rent. Therefore, such a person would be entitled even to the protection of the Rent Control Act. I would clearly agree with the aforesaid reasoning of our learned Brother Dave J.