SAKHARAM Vs. PANDURANG RAGHUNATH

JUDGEMENT

(1.) The short question which arises for decision in this appeal is whether as permanent tenants of the land the plaintiffs are entitled to redeem the mortgage executed by the landlord in respect of the said land. The properties mortgaged consist of Section No. 244, Pot Hissa Nos. 1 to 5, situated at Mouje Shiroda. Three mortgages have been created in respect of this property in 1863, 1865 and 1367 respectively in favour of the defendants' predecessors-in-title. It is common ground that the mortgagors have left no heirs and their line has become extinct. The plaintiff's claim to be permanent tenants on the ground that they have been on these lands since long before 1863. In the present suit they claimed to redeem the three mortgages and asked for accounts under the provisions o Section 15D, Dekkhan Agriculturists' Relief Act. The defendants resisted their claim on the ground that the plaintiffs were not the permanent tenants of the land as claimed by them and, even if they were, they were not entitled to sue for redemption. A bar of limitation was pleaded, and it was urged that the suit was bad for want of necessary parties. The learned trial Judge rejected all these contentions and ordered accounts to be taken of the mortgages in suit. In the result he declared that nothing was due to the mortgages under the suit mortgages and that they were satisfied. The defendants challenged this decree by an appeal and their appeal succeeded. The Tower appellate Court confirmed the finding of the trial Court that the plaintiffs are the permanent tenants of the land in suit; but, in his opinion, they would not be entitled to sue for redemption even as permanent tenants under Section 91, T. P. Act. That is how the only question which arises for decision in the present appeal is whether as permanent tenants of the land mortgaged the plaintiffs are entitled to sue for redemption.

(2.) It may be assumed in favour of the plaintiffs that by reason of their status as permanent tenants they have an interest in the land which is in their possession as such tenants. It may be that the words "any interest in the property mortgaged are wide enough to include minor or smaller interests in the said property. But the question is whether the plaintiffs have such an interest in the property mortgaged as would entitle them to sue for redemption under Section 91. Section ill deals with persons who may sue for redemption and it provides that besides the mortgagor, the persons lulling under Clause (a), (b) and (c) may redeem, or institute a suit or redemption of, the mortgaged property. We are concerned with the persons falling in Clause (a). This clause refers to ``any person (other than the mortgage of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same," Have the plaintiffs any interest in the property mortgaged? If they have, they would be entitled to sue under Section 91. In dealing with this-question it is necessary to bear in mind, the tact that the plaintiffs have been in possession of the land as permanent tenants long before the mortgages were executed. In other words, the plaintiffs' right in the property mortgaged is unaffected by the mortgage's themselves. What has- been mortgaged by the landlord is the reversionary rights vesting in him. The mortgagee cannot dispute the permanent tenancy rights and in that sense the permanent tenants' rights are not affected by the mortgages at all. The rights of a person who has an interest in the property mortgaged would ordinarily be affected by the mortgage and a person whose interest is thus affected by the mortgage would also be a necessary party to a suit on mortgage under Order 34, Rule 1. It seems to me that in the case of a permanent tenant whose tights are outside the mortgage altogether, it would be difficult to hold that he has an interest in the property mortgaged as such'. His interest is not covered by the mortgage and is paramount in the sense that it is not affected by redemption or foreclosure of the mortgage or by sale o the mortgaged property. A permanent tenant of 'his character would not, in my opinion, be a necessary party to a suit under Order 34, Rule 1. The case of a permanent tenant or a tenant for a number of years whose tenancy commences after the mortgage is executed would, however, stand on a different footing. If the mortgagor leases the mortgaged property on the basis of a permanent tenancy or a tenancy for a number of years, it cannot be said that the tenant's rights are outside the mortgage and are not affected by it. In such a ease the subsequent tenant may claim to have an interest in the right to redeem the mortgage. Therefore, in my opinion, in dealing with the permanent tenants' right to redeem under Section 91 it is necessary to distinguish between per- manent tenants who were on the land prior to the mortgage and those who have conic on the land subsequent to the mortgage. In the first case their rights are not affected by the mortgage, and in the second their rights have come into existence during the subsistence of the mortgage itself and they would, therefore, be entitled to claim a right to redeem the mortgage. If this be the true position, the plaintiffs in the present case, who, according to the findings, were the permanent tenants of this land even before the mortgages were executed, would not be entitled to sue for redemption under Section 91. It seems to me clear that it would not be open to the mortgagee to evict the permanent tenants on the ground that their rights as permanent tenants are not bidding on him. The mortgagee has taken the mortgage subject to the permanent tenants rights which had already been created in favour of the plaintiffs and those rights could not be challenged by the mortgagee. The mortgagee will be entitled to claim only such relief's against the permanent tenants as the mortgagor could have. In this context and in the limited sense so far as the rights of redemption are concerned, the position of the plaintiffs may be compared to that of prior mortgagees, whereas the position of lessees let in after the mortgage may be said to correspond to puisne mortgagees. Therefore, in my opinion, the lower appellate Court was right in holding that the plaintiffs were not competent to bring the present suit.

(3.) On behalf of the appellants Mr. Chitale has invited my attention to two decisions of this Court, which I will now proceed to consider. In -- 'Venkatesh v. Bhujaballi', AIR 1033 Bom 97 (A) Patkar and Murphy JJ. had to deal with a converse case. In the said case the landlord had leased out a building site to his tenant on condition that the tenant was to build a house on it and to pay an annual rent to him. The lease contained a stipulation that so long as the house stood on the site the tenant and his bhaubands should continue to pay the rent, and if the house was sold, the plaintiff should be informed of it and should be paid a quarter of the sale proceeds. The tenant built a house on the land demised to him and was in possession of the house during his lifetime. After his death his widow mortgaged the property to the predecessor of defendants 1 to 3. At the time when the widow died there were no heirs of the tenant and his line had become extinct. The plaintiff, thereupon, sued to redeem the mortgage from the defendants and the question was whether he was entitled to sue under Section 91, T. P. Act. It was held that ho was, and Mr. Chitale's argument is that by parity of, reasoning the permanent tenants in the present case should be given the same right. In my opinion the case of the landlord stands entirely on a different footing. If the landlord had carved out an absolute transferable interest in favour of the tenant which under no circumstances could have reverted to the landlord, it would not have been possible for the Court to hold that he had an interest in the property mortgaged. That is in fact what Patkar J. expressly says in his judgment. He, however, came to the conclusion that in the case of the landlord with whom they were concerned the rights of the permanent tenant would have reverted to the landlord in case he had denied the landlord's title or failed to pay the rent. Besides, there was an additional ground present in that case lo which Patkar J. has referred in his judgment. And this ground was that the landlord had an interest in the building itself erected bv the tenant on the land as the agreement had provided that in case the building was sold, the landlord was entitled to a quarter of the sale-proceeds. Therefore, the landlord had not only" an interest in the land, but ho had an interest also in the building which had been mortgaged by the tenant. Since the landlord's right to redeem under Section 91 was recognised on these two specific grounds, I do not see how this case can assist Mr. Chitale to support his proposition that the permanent tenants are entitled to sue for redemption.