JOSEPHINE Vs. THERASA AMMAL

JUDGEMENT

(1.) This Second Appeal has been filed by the plaintiffs challenging the judgment and decree of the lower appellate Court, whereby the suit filed by them was dismissed.

(2.) The appellants herein are the owners of the suit property. Admittedly, there was tenancy between the appellants and the respondent being the landladies and tenant respectively. Thereafter, a deed was executed mortgaging the suit property under Ex.A.1 dated 19.03.1980. As per the said deed, possession has been given in favour of the respondent for a period of five years. The respondent was permitted to enjoy the suit property either by residing there or by letting out the same. After the execution of Ex.A.1, an extension deed was executed under Ex.A.7 dated 13.03.1985. As per the said deed, it has been stated that the respondent can have the possession of the suit property for a period of 2 years and after the same, when the appellants pay the amount, the possession will have to be handed over to them without any objections. Basing reliance upon the above said two documents, the appellants filed the above suit for redeeming the mortgage and for delivery of possession.

(3.) The respondent filed a written statement stating that there is no objection for redeeming the mortgage, but the possession cannot be taken over by the appellants as the respondent continues to be a tenant. It has been further stated that there can be no merger of mortgagee with a lessee. A specific plea has been taken that an advance of Rs.200/- has not be paid by the appellants and there was also no adjustments. The trial Court decreed the suit as prayed for placing reliance on Exs.A.1 and A.7, which has been reversed by the lower appellate Court on the ground that the merger of two transaction, namely mortgage and lease is not permissible in law and in view of the submissions made by the appellants that what has been stated under Ex.A.7 is nothing but the narration of Ex.A.1. Therefore, considering the above facts and circumstances of the case, the judgment of the trial Court has been reversed by the lower appellate Court.