BAWA ELECTRIC RADIO SERVICE Vs. SHAM KAUR

JUDGEMENT

(1.) THE question of law involved in this regular second appeal filed by the tenant is whether the lease of a shop granted by a mortgagee in possession of the mortgaged property would be binding on the mortgagor after the redemption of the property and whether the attestation of the rent note by the mortgagor would make any difference to the proposition of law involved.

(2.) THE shop in dispute is situated in an important commercial locality of Bhatinda city. Its owner Shri Piare Lal defendant-respondent No. 3 had mortgaged it with shri Kanhaiya Lal defendant-respondent No. 1 and the registered mortgage deed, copy Exhibit P. 9 dated 18-12-1959 recites that the mortgage is with possession and that the mortgagee could either live in the house or lease it out. Some additional mortgage amount was raised on the property on a later date and the parties were not agreed as to whether the mortgagee had actually been delivered possession of the shop after the mortgage. This would not, however, seem to make any material difference to the ultimate decision of the suit because when the property was let out to the appellant on 4-1-1964 by the mortgagee Shri Kanhaiya lal, it was admittedly lying vacant and the advance rent for three months was paid to him by the appellant vide the receipt, Exhibit D. 34. The appellant had executed the rent note. Exhibit D. 4 dated 4-1-1964 the same day in favour of Shri kanhaiya Lal mortgagee. The mortgagor's own case is that he had continued in possession of the property up to November, 1963 and during the period of about two months that the property remained lying vacant, the possession was to be presumed to be the mortgagee in accordance with the terms and conditions of the mortgage. It may, however, appear apparent that the mortgagor had not completely cleared out of the shop up to the date of the grant of the lease in appellant's favour and that he was keeping some built in furniture and fittings inside the shop. This furniture and fittings he had sold to the appellant for a sum of Rs. 700/- on the date of the grant of the lease by the mortgagee. The appellant had issued the receipt, Exhibit D. 1 dated 4-1-1964 for the price of the furniture etc. in favour of the mortgagor Shri Piare Lal the same day. Shri Piare Lal has reserved to himself the right to build on the first floor of the shop even during the continuance of the tenancy and this may appear to have been the reason why he had signed the rent note, Exhibit D. 4 dated 4-1-1964 as an attesting witness.

(3.) SHRI Piare Lal sold the shop in dispute to Smt. sham Kaur plaintiff-respondent by the registered sale deed. Exhibit P. 1 dated 19-12-1967. Smt. Sham Kaur filed this suit for possession by redemption of the property. As she had impleaded the appellant as a defendant in the case, the question arose whether the appellant would be liable to be dispossessed in execution of her redemption decree. The plaintiff's right to redeem the property had been challenged in the two Courts below but it is not seriously argued by Shri Aggarwal, the learned counsel for the appellant in this Court, that Smt. Sham Kaur has the right to redeem as she has purchased the shop from the owner mortgagor. Shri Aggarwal's main argument is that as the lease is in appellant's favour by the mortgagee, the lease would be binding on the owner-mortgagor or anyone deriving title from him even after the property has been redeemed. The appellant, therefore, claims protection of East punjab Urban Rent Restriction Act and Section 106 of the Transfer of Property Act not only against the owner mortgagor but also against Smt. Sham Kaur plaintiff who has purchased the property from him.