MOHAN SINGH Vs. RAMJI DASS

JUDGEMENT

(1.) THE shop in dispute belonged to one Budh Ram. By a registered mortgage deed dated November 14, 1946, Exhibit P/1 he mortgaged this shop with one Kalu Ram and handed over the possession of the same to him. There is a stipulation in the mortgage deed Exhibit P/1 that the mortgagee could either himself continue to occupy the shop or could lease it out to a tenant. Kalu Ram transferred his mortgagee rights to one Chanan Ram vide Ex. P. 2 executed on March 31, 1952. The said Chanan Ram further transferred his mortgagee rights in favour of Mohan Singh appellant No. 1 vide Ex. P. 3, dated July 18, 1964. Mohan Singh appellant inducted Partap Singh appellant No. 2 as a tenant in the shop. Ramji Dass, alongwith Ajaib Singh, purchased the equity of redemption from Budh Ram on April 27, 1960 in equal shares. On January 28, 1967 Ajaib Singh sold his share to Ramji Dass who thus became the owner of the shop in dispute, Ramji Dass filed a suit for redemption against the two appellants claiming actual possession of the shop in dispute. Both the Courts below have non -suited Partap Singh appellant No. 2 on the ground that the tenancy created by a mortgagee comes to an end at the time of the extinction of the mortgage.

(2.) IN this appeal, Partap Singh appellant No. 2, who is a tenant of the shop under Mohan Singh appellant No. 1, claims that there is the express stipulation in the mortgage deed Ex. P/1 that the mortgagee - the successor -in -interest had been given the right to induct tenants into the shop in dispute and as such even if the mortgage were redeemed, he had a right to occupy the shop in dispute as a tenant. In support of this proposition, reliance is placed on Jagan Nath Piare Lal v. Mitter Sain, A.I.R. 1970 Punj. and Hary. 104 (F.B.). In that case, however, the tenancy had earlier been created by the mortgagor himself. After the creation of the mortgage, the tenant agreed to pay slightly more rent to the mortgagee and continued in possession of the property as a tenant. The Full Bench, in these peculiar circumstances, decided that after the extinction of the mortgage, the earlier tenancy held by the tenant under the mortgagor did not come to an end. That case, therefore, does not help the appellant at all.

(3.) A similar view was taken by the Full Bench of the Gujarat High Court in Lalji Parushotam v. Madhavji Menhaji, 1976 R.C.J. 349 (F.B.). In deference to Mr. Tirath Singh, the learned counsel for the appellant it may be observed that there is some force in the plea raised by him that if an act of good management done by a mortgagee can bind the mortgagor even after the termination of the tenancy, a tenancy created by the latter pursuant to an express permission given to him in the mortgage -deed should atleast be regarded as an act of management.