KASILINGA PADAYACHI Vs. KALIYAPERUMAL PADAYACHI

JUDGEMENT

(1.) THIS second appeal arises out of the judgment and decree of the learned Subordinate Judge, Vridhachalam, in A. S. No. 17 of 1984 dated 17. 1. 1985 in reversing the judgment of the learned District Munsif, vridhachalam, in O. S. No. 2258 of 1981, dated 24. 8. 1983. The plaintiff in the suit is appellant in the above second appeal.

(2.) THE suit was filed for redeeming the mortgage as against the first defendant in the suit. THE plaintiff contended that the suit item in A schedule property belonged to him, while item B belonged to the second defendant. THE second defendant had executed a possessory mortgage (Ex. A. 1) in favour of the first defendant for a sum of Rs. 1,300 on 22. 10. 1975 and it was stipulated that the first defendant shall hold, cultivate and enjoy the income from the properties in lieu of interest on the loan amount for a period of three years, by which time if the second defendant pays the loan amount, the first defendant shall redeem the mortgage. It is also contended by the plaintiff that the first defendant has been in possession on the basis of the said understanding. With reference to the'a'schedule property, the second defendant and his wife agreed to sell the property to the plaintiff and pursuant to the agreement, it was agreed that the plaintiff shall take over the liability under Ex. A. 1 and discharge the same and shall pay a further sum of rs. 2,200 towards balance of sale consideration to the second defendant and his wife. THE plaintiff further contended that the said amount of Rs. 2,200 was paid in two instalments and a sale deed (Ex. A. 2) dated 14. 9. 1977 was executed. It was also pleaded by the plaintiff that he had undertaken to discharge the mortgage debt and as he was entitled to the benefits of Act 40 of 1979, after due deduction he was liable to pay only Rs. 810. A notice to the said effect was issued to the first defendant who did not respond to the notice. Hence as required under, he filed a petition under Section 83 of the Transfer of property Act he had made deposits in Court, and as the first defendant had refused to receive the amount, the petition filed by him was rejected and hence the suit.

(3.) THE lower appellate Court has also not correctly appreciated the legal effect of the claim of tenancy rights by the first defendant even after the execution of the mortgage by the second defendant in favour of the first defendant under Ex. A. 1. While considering as to whether after the execution of Ex. A. 1, the relationship of landlord and tenant continued, it is true that the first defendant was a tenant under the second defendant prior to the execution of the said document. But the recitals in ex. A. 1 clearly establishes that a new relationship of mortgagor and mortgagee have been brought into existence. It is also clear that there was nothing in the document to suggest the continuance of the relationship of landlord and tenant. In fact, the recitals clearly suggest implied cessation of relationship of landlord and tenant, and the positive commencement of the relationship of mortgagor and mortgagee as follows: THE recitals clearly visualise that the first defendant shall surrender possession immediately on the repayment of the loan amount. THErefore, it is futile to contend that the relationship of landlord and tenant was to continue even after the execution of Ex. A. 1. In this context learned counsel for the appellant rightly relies on a decision of the Supreme Court reported in Gambangi A. Naidu v. Behara V. Patro, 1984 (4) S. C. C. 382. While dealing with the question as to whether there could be a merger of the right of mortgagee and the tenant, the Supreme Court has observed as follows: "in our view the answer to the question raised in this appeal must depend upon whether there was an implied surrender of the lessee's rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor. And this obviously depends upon what was the intention of the parties at the time of execution of the mortgage deed in favour of the sitting tenant to be gathered from the terms and conditions of the mortgage transaction in light of surrounding circumstances of the case. It may be stated that in both the decisions of the Andhra Pradesh High Court on which reliance was placed by the respective counsel of the parties in support of his own contention the question was ultimately decided on proper construction of the terms and conditions of the mortgage transactions in the earlier decision the court took the view that there was nothing in the mortgage deed to suggest that there was an implied surrender of the lessee's rights while in the latter case the court held that the terms of the mortgage deed showed that the lessee had impliedly surrendered his rights. In other words, it all depends upon whether by executing a possessory or usufructuary mortgage in favour of a sitting tenant the parties intended that there should be a surrender of lessee's rights or not, and only if an implied surrender or lessee's rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. 9. As stated earlier, the intention of the parties in the present case is very clear namely that the possession of the property was to be surrendered to the mortgagor on the repayment of the loan. 10. Reference is also made to another judgment of the supreme Court reported in Shaw Mathurdas Manganlal and Co. , v. N. S. Malage, 1976 (3) S. C. C. 660. In that case the terms of the deed made it clear that the mortgage had undertaken to deliver possession of the property to the mortgagor on the expiry of the period of 10 years. In the present case also, as could be seen from the recitals extracted above, the mortgagee had undertaken to surrender the property to the mortgagor if the loan amount was paid within a period of five years. 11. THE effect of the decisions rendered by the Supreme court in the said context, is that the actual agreement between the parties and the recitals in the document have to be taken into account before concluding as to whether the parties had intended relinquishment of the rights of the tenancy. Even though tenancy is not specifically referred to in Ex. A. 1, the very fact that the mortgagee had agreed to surrender possession of the land to the mortgagor, would necessarily lead to a presumption of implied surrender of lease-hold right. @bt = 12. In the present case, there is ample evidence to show that after the execution of Ex. A. 1 there was no continuance of the relationship of the landlord and tenant as between the second defendant and the first defendant. THE conduct of the parties also indicates that the second defendant was deliberately playing fraud on the plaintiff and the first defendant had also colluded with the second defendant. THE very pleadings as made by the first defendant are contradictory. It is true that a defendant may take an alternative plea as he may be entitled to. But any such plea should be sufficient to inspire confidence in the mind of the Court to arrive at a decision as regards the real intention between the parties, which is very necessary to decide the rights of the parties as would arise under Ex. A. 1. THE first defendant had in fact has expressed that he was prepared to agree for redemption of mortgage if he was paid Rs. 2,000 which was said to have been incurred by him towards improvement of the property. In fact, he has also pleaded that there was a Panchayat on the said issue and that the plaintiff was aware of the same. However, the first defendant would also plead that he was not aware of the sale deeds executed in favour of the plaintiff by the second defendant. He would also further plead that he was entitled to remain in possession of the property in the capacity of a tenant under the second defendant. THErefore, the said contradictory pleadings, the conduct of the first defendant would amply establish that he is not speaking the truth and that he along with the second defendant had deliberately colluded together to deprive the rights of the plaintiff. THE learned appellate judge even while upholding the so-called rights of tenancy in favour of the first defendant, has also ignored that the plaintiff was atleast entitled to a decree for redemption. As stated earlier the only ground on which the judgment of the trial court was reversed was on the issue that the fi rst defendant was entitled to continue as a tenant of the suit property. Even so the plaintiff's entitlement for redemption cannot be deprived. However, the learned appellate judge has not granted the said right to the plaintiff. THErefore, viewed from any angle the judgment and decree of the learned appellate judge cannot be sustained. 13. Notice in the above Second Appeal even though having been served on the respondents, the respondents are not appearing either in person or through counsel. 14. In the result, the above second appeal is allowed. THE judgment of the lower appellate Court is set aside and the judgment of the trial court is restored. No costs. .