M MANICKAM ASARI Vs. MEENAKSHI AMMAL

JUDGEMENT

(1.) THE defendant in O. S. No. 389 of 1976, District Munsif's court, Madurai Town, is the appellant in this second appeal. THE suit property, bearing Door Nos. 47 and 48 and situate in t. S. No. 1387 in Madurai Town, measures 28'east to west and 25' feet north to south, inclusive of a shed measuring north to south 19' and east to west 9'. On 27-12-1947, Chidambaram Asari and his wife, rathinammal, who owned the suit property, leased out to the appellant a vacant site for a period of three years measuring 9'east to west and 27' north to south from out of a larger extent of the property with common pathway rights and rights in a well. Subsequently, on 16-12-1951, Rathinammal leased out to the appellant the same property, viz. , 9'x 27'for a further period of three years. On the death of Rathinammal, her daughter, the 1st respondent herein, became entitled to her properties, and on 30-8-1954, the 1st respondent leased out to the appellant the very same property, viz. , 9' x 27'for a period of 5 years from the First of Marghazhi of Jaya Tamil year. THEreafter, on 27-11-1957, the 1st respondent borrowed a sum of Rs. 1,850 from the appellant and executed an usufructuary mortgage deed under Ex. A-1, dt. 27-11-1957 on her behalf and as guardian of her then minor son. THE property usufructuarily mortgaged comprised of the entire site measuring east to west 28' and north to south 25'''t hereon. Pursuant to the usufructuary mortgage executed by the 1st respondent on 27-11-1957, the appellant was put in possession of the property mortgaged. Under the terms of the mortgage, the period of redemption was fixed as seven years and the appellant had to pay the municipal tax and agreed further to surrender possession of the property on the expiry of the period of redemption. Subsequently, under Ex. A-2, dt. 7-4-1964, the 1st respondent again borrowed another sum of rs. 2,150 from the appellant and executed a further mortgage fixing ten years as the period of redemption, which expired on 6-4-1974. Respondents 2 to 5 herein are the sons of the 1st respondent subsequently born. According to the case of the respondents, after the expiry of the period of redemption, the othi amounts were offered and the appellant was required to suffer redemption. But the appellant was postponing, which resulted in the issue of a notice by the 1st respondent on 20-3-1976 to the appellant offering to pay the othi amounts and seeking redemption of the mortgages. In the reply notice, the appellant put forth the claim that the property was leased out as a vacant site to him, wherein he had put up valuable superstructures and that it was agreed that even after the creation of the mortgages, the possession of the appellant as a tenant with reference to the property leased out, was not to be disturbed, and this, according to the respondents, was a false claim. THE respondents claimed that on the execution of the mortgage deeds, the leasehold right in favour of the appellant became extinct and thereafter, the appellant could not claim rights as a lease, after taking possession of the property as a usufructuary mortgagee. THE respondents maintained that it was never represented by them that the appellant's possession would not be disturbed and therefore, they are entitled to redeem the suit property. Accordingly, the respondents in o. S. No. 389 of 1976, District Munsif's court, Madurai Town, prayed for the relief of redemption of the suit property.

(2.) IN the written statement of the appellant, after referring to the prior leases in 1947 and 1951, he contended that at the time of the creation of the usufructuary mortgages, he was already a tenant in possession of a portion of the suit property and he agreed to advance monies on the strength of the usufructuary mortgage deeds, only if the lease in his favour was kept in tact and continued and the 1st respondent agreed to this course and only thereafter, the amounts were advanced by the appellant under the mortgages sought to be redeemed. The appellant claimed that even if the othis are redeemed, he is entitled to continue as a lessee in respect of the property leased out to him. Expressing his willingness and readiness to pay the rent, the appellant disputed the entitlement of the respondents to the relief of redemption. Claiming that he is a tenant entitled to the benefits of Madras city Tenants Protection Act, the appellant resisted the relief of physical possession by redemption prayed for by the respondents.

(3.) UNFORTUNATELY, the lower appellate Court has not adverted to the aforesaid aspects, but has proceeded to consider the question of the leasehold rights in a portion of the property in favour of the appellant being kept in tact, merely from the point of the relative value of the right as lessee and the right as an usufructuary mortgagee. The entire reasoning of the lower appellate Court in Paras. 7,9 and 10 proceeds only on the footing that rights under the Madras City Tenants Protection Act are more valuable than the rights as an usufructuary mortgagee and therefore, it is not probable that such valuable leasehold rights had been given up at the time of the execution of the usufructuary mortgage under Ex. A-1. The relative value of the rights, is not the proper basis for deciding the question whether despite the execution of the usufructuary mortgage deeds under Exs. A-1 and A-2, the leasehold rights were kept in tact. The approach should be, whether despite the transactions of usufructuary mortgages entered into under Exs. A-1 and A-2, the prior leasehold rights in a portion of the property in favour of the appellant, were intendedto be kept in tact unaffected by the right conferred as an usufructuary mortgagee. The lower appellate Court, apart from characterising the rights as a lessee, as more valuable, and being in the nature of a larger right, has also stated that no prudent person would have opted to give up the valuable rights as a lessee under the Madras City Tenants Protection Act, by accepting possession of the property as an othidar. This line of reasoning, as pointed out earlier, is fallacious, and cannot therefore be supported at all.