DHULILAL Vs. PANNALAL

JUDGEMENT

(1.) THIS is a defendant's second appeal in a suit for redemption of mortgage and arises in circumstances presently to be mentioned.

(2.) THE plaintiff's case was that he had made a usufructuary mortgage ;of the suit shop, the boundaries whereof have been fully described in paragraph one of the plaint, as a security for a loan of Rs. 1500/- taken by him from the defendant on the 3rd August, 1945, vide Ex. 1. I shall refer to the conditions of this mortgage at the proper place. Suffice it to state at this place that the plaintiff asked the defendant to give redemption of the suit property but without any avail, and, consequently, he instituted the suit, out of which the present appeal arises, on the 30th July, 1959, in the Court of the Musiff Kotah. The defendant admitted the mortgage but he denied that the plaintiff had ever offered the redemption money to him. His principal contention, however, was that the plaintiff was in no case entitled to get possession, of the shop because on the 3rd August, 1945, when it had been mortgaged to him, he was in occupation of it as a tenant from the plaintiff and that tenancy had never been terminated. The trial Court held that the plaintiff was entitled to redeem the mortgage on payment of Rs. 1500/- into the Court but it further held that the plaintiff would not be entitled to get possession thereof inasmuch as there was a previous relationship of landlord and tenant between the parties and it having remained in abeyance during the subsistence of the mortgage was bound to revive and the parties would revert to their former status. The plaintiff then went up in appeal to the learned District Judge Kotah who allowed the appeal and held that the plaintiff shall be entitled to get back possession of the mortgaged shop as well. The learned District Judge acted on the principle that as soon as the parties entered into the transaction of mortgage in this case having regard to the terms of the mortgage, the old relationship of landlord and tenant between them was terminated by an implied surrender within the meaning of Clause (f) of Section 111 of the Transfer of Property Act, and thereafter the only relationship in which they stood with each other was that of a mortgagor and a mortgagee and on redemption of mortgage, therefore, the plaintiff should be held entitled not only to get back the documents relating to his title which he had handed over to the defendant at the time of the mortgage but he was also entitled to get back actual possession of the property under mortgage. Aggrieved by this decision, the defendant has come up in second appeal to this Court.

(3.) THE only question which, therefore, falls for determination in this appeal is whether the finding of the learned District Judge that there was an implied surrender of tenancy rights on the part of the defendant as soon as he acquired the status of a mortgagee with respect to the property in question is well-founded. Learned counsel for the defendant appellant has strenuously contended that it is not, and places his chief reliance on a decision of the Allahabad High Court in Kallu v. Diwan, ILR 24 All 487. This decision in its turn relied on a decision of Burkitt J. of the same High Court in second appeal No. 122 of 1898 decided on the 20th december, 1898 (All), in which it had been held that no extinction of tenancy rights could take place upon the grant of a usufructuary mortgage to an occupancy tenant by his landlord. To use the words of Burkitt J. , if the extinction of tenancy rights was brought about in such a case on the redemption of mortgage, the result would be that the occupancy tenant would be in a much worse position after his possession as mortgagee had ceased than before, and such a result could not be assented to. The point to be noted is that in the case before Burkitt J. the person in whose favour the mortgage came to be made was an occupancy tenant of the land un3er mortgage. The learned Judges in Kallu's case. ILR 24 All 487 (supra) seem to have extended the doctrine upheld by Burkitt J. so as to govern cases of tenancies of even less durable character. With all respect, it is not quite easy to see any sound justification for such an extension. For, in my opinion, the case of occupancy tenants, or of tenants of a like category whose rights of tenancy are invested with a security of tenure under the revenue laws in force in our country does stand on a distinctly different footing from that of non-occupancy or like tenants inasmuch as the policy of our tenancy legislation, broadly speaking, is to grant protection from eviction to the former class of tenants and, therefore, the Courts do not look with favour upon loss or extinction of such tenancy rights except under clear and compelling provisions of law to that effect. But it is a question whether the same considerations should apply to tenancies of less durable character whether relating to agricultural or residential land. And in this connection, my attention has been drawn to a number of cases which I do not consider it necessary to discuss at length but the effect of which may be described somewhat as follows.