S V VENKATARAMA REDDIAR Vs. ABDUL GHANI ROWTHER

JUDGEMENT

(1.) This Letters Patent Appeal has been preferred against the Judgment of Ismail, J., (as he then was) in App. No. 647 of 1970. The appeal originally came up for hearing before a Division Bench of this court, consisting of Ramanujam and Sengottuvelan, JJ. The Division Bench -felt that the question which arose for consideration in the appeal, viz, whether a tenant inducted into possession by an usufructuary mortgagee can claim the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as against the mortgagor, after the redemption of the mortgage, warranted consideration by a Full Bench, in view of the importance of the question and the conflict of authorities. Accordingly, this Bench has been constituted to consider the appeal and that is how the matter is before us.

(2.) One P. V. J. Vella Batcha Rowther, who was the plaintiff in the suit, was the owner of the suit property, viz., a non-residential building bearing door No. 55 in Jawahar Bazar in Karur town. He had created three mortgages with possession over the suit property under Ex. A. 1, dated 21-12-1953, Ex. A. 2 dated 14-2-1959 and Ex. A. 3 dated 25-81964. All the mortgages were created in favour of the first defendant who is none other than the son-in-law of the plaintiff. When the first mortgage was created, one Chinnasami Naidu was in occupation of the property as a tenant. He subsequently vacated the property and thereupon, the first defendant let out the property to the 2nd defendant. The lease was first effected under a registered rent deed Ex. A. 12, dated 2561954 and the tenancy was continued by means of another rent deed Ex. A. 13, dated 26-8-1963. The tenancy created under Ex. A.13 was for a period of 3 years with effect from 1-5-1963. However, the 2nd defendant did not vacate the premises on the expiry of the 3 years' period and he continued to be in occupation of the building. On 13-3-1968, the plaintiff redeemed all the three mortgages and then called upon the 2nd defendant to surrender possession of the building, On the 2nd defendant failing to comply with the demand the plaintiff came forward with the suit, O. S. No. 273 of 1968, on the file of, the Court 32 of the Subordinate Judge Tiruchirapalli, on 22-6-1968, for recovery of the suit building together with profits, past and future, at the rate of Rs. 40 per mensem.

(3.) Even before the filing of the suit, the 2nd defendant filed a petition, R. C. O. P. No. 47 of 1967, on the file of the Rent Controller, Karur and prayed for recognition of his status as a tenant under the plaintiff and for permission for depositing in court the rent payable for the suit property. The plaintiff opposed the petition- and eventually the petition was closed, after the filing of the present suit, on a joint endorsement made by the parties that without prejudice to the contentions of either party in the suit the 2nd defendant can deposit the rent in court. In the ejectment suit the first defendant did not set up any defence, and, in fact, he remained ex parte. The 2nd defendant alone contested the suit and he raised various defences, the principal one among them being firstly that as per joint representations made to him by the plaintiff and the first defendant, he attorned his tenancy to the plaintiff and thenceforth he had become a tenant directly under the plaintiff and was therefore entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act), and secondly, that even assuming that a direct relationship of landlord and tenant between the plaintiff and himself had not come into existence, he would still be entitled to the benefits of the Act inasmuch as the tenancy created by the first defendant, the mortgagee, was referable to Section 76(a) of the Transfer of property Act, and in such circumstances, the tenancy did not come to a close on account of the redemption of the mortgages by the plaintiff. Both the contentions were repelled by the learned trial Judge. In the appeal before, the learned single Judge, of this court, the first contention, among others, was successfully canvassed. But, so far as the second contention is concerned, it was not pressed. Hence, the learned single Judge dealt with the matter as follows- ''Having regard to the decision of this court and other courts on this point, it was not contended before me that the appellant, as a tenant of the usufructuary mortgagee, would be entitled to claim the protection of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, as against the mortgagor viz, the first respondent herein after the discharge of the mortgages". Since the other contentions urged before the learned single Judge were not accepted, the learned Judge confirmed the judgment and decree of the trial court and dismissed the appeal.