MOTILAL GOVINDRAM Vs. GOPIKRISHNA SHADILALJI

JUDGEMENT

(1.) THIS is an appeal by the defendant from the substantially concurrent judgments of the two lower Courts, decreeing the plaintiff's suit for recovery of actual physical possession over a house, on redemption of the usufructuary mortgage created by the plaintiff in favour of the defendant, notwithstanding the fact that at the time the mortgage was created, the defendant was already the lessee of the house from the plaintiff. The questions are, first, whether there was an implied surrender of the lease by the lessee at the time he took the mortgage, either (a) by implication of the terms of the mortgage deed itself, or (b) by operation of law; secondly, looking at it in another way, whether, the lessee's interest merged into the mortgagee -interest, which in its turn could be redeemed without the lease being revived.

(2.) THE facts are simple and for the most part, admitted, at least at the later stages of the litigation. The plaintiffs are the owners of the house in question about the identity of which there is no dispute. The defendant alleged that he had been a tenant on a monthly basis for a long time. At the first instance, the plaintiffs did not directly admit it, but argued that - even on the assumption that the defendant had been a tenant, it would not affect the plaintiffs' right to get actual physical possession.

(3.) ON 18 -12 -1952, during the pendency of the lease the plaintiffs mortgaged the property with possession for a sum of Rs. 1,725 for two years. Till redemption of the mortgage, the mortgagee was not to pay any rent, and the mortgagor for his part, was not to pay any interest. The following recitals are relevant for our purposes: