HAVU RAVLU PADTI Vs. GANAPATI VENKATRAMAN SHENVI

JUDGEMENT

(1.) Defendant No. 2 owned the land in suit and granted a mulgeni lease of it in 1915 to defendant No. 1 appellant and subsequently passed a usufructuary mortgage of the land in favour of the plaintiff-respondent. The appellant asked the respondent to allow him to surrender the lease. The respondent refused. The appellant then purported to surrender the lease to defendant No. 2 who accepted the surrender. The respondent sues the owner defendant No. 2 and defendant No. 1 appellant for rent for the period subsequent to the surrender by the appellant to defendant No. 2. The trial Court held the surrender valid and dismissed the suit. In appeal the District Judge held that the surrender was not competent and decreed the claim. Defendant No. 1 appeals.

(2.) The question in this appeal, therefore, is, whether, by virtue of Section 111, Clause (e), of the Transfer of Property Act, the lease could be determined by a surrender by a mulgeni tenant to the owner, the original lessor, without the consent and contrary to the wish of the mortgagee. It is to be noted that in the present case the mortgaged property comprised not merely the ownership of the land but also expressly the right to receive the rent from the mulgenidar appellant, and the rent was actually received by the respondent mortgagee. Under Section 5 of the Transfer of Property Act, the mortgage was a transfer of property. Under Section 109 of the Transfer of Property Act, the lessor transferred the property leased to the transferee mortgagee. It, therefore, follows that the rights including the right to agree to the surrender of the lessor of the rent during the subsistence of the mortgage did not remain in the mortgagor the original lessor. On general principles, therefore, the consent of the mortgagee to surrender would be necessary. Thus in Bobbins V/s. Whyte [1906] 1 K. B. 126 it was hold that A mortgagor in possession, who has granted a lea.se under the statutory power conferred on him by Section 18, Sub-section 1, of the Conveyancing Act, 1881, has no power to accept a surrender of the lease without the concurrence of his mortgagee. On a somewhat analogous principle it was held in Barjorji V/s. Shripatprasadji (1926) 29 Bom. L.R. 215, 220 that it was competent to a mortgagee in possession, to determine the tenancy of an annual tenant in respect of the land which formed part of the mortgaged property without the consent of the mortgagor. The latter has no power to accept the surrender without the consent of the mortgagee even in the case of an annual tenant. A fortiori he would not have that power in the case of a mulgeni tenant as in the present case. It follows that it is necessary for the original lessor mortgagor during the subsistence of the mortgage to obtain the consent of the mortgagee before he could accept the surrender by the mulgenidar of the lease when it was a portion of the mortgaged property.

(3.) The appeal fails and is dismissed with costs. Patkar, J.