ALAGIRISWAMI MUDALI Vs. AKKULU NAIDU

JUDGEMENT

(1.) I am unable to agree with the District Judge that when a mortgage is redeemed the lease created by the redeemed mortgagee is still subsisting and that by virtue of Section 74 of the Transfer of Property Act when it is a 2nd mortgagee that redeems the prior mortgage the redeeming mortgagee gets the landlord's rights as against the tenants of the latter.

(2.) I consider when a mortgage is redeemed subsidiary rights created on the mortgaged property such as lease rights come to an end ipso facto and any former tenant continuing on the land must be treated as a trespasser thereafter unless of course from the conduct of parties or otherwise a fresh tenancy can be held to have been created or an implied tenancy arises "See Govinda-swami Pillai V/s. Pethaperumal Chetty (1918) 44 I.C. 839 p. 844 Adjoodhya Singh and others V/s. Girdharee 2 N.W.P.H.C.R. 199 and Ram Chand V/s. Rajbans (1906) 3 All L.J. 517. Our attention was called to the ruling in Chinnappa Thevan V/s. Pazhaniappa Pillai (1915) 2 L.W. 1132 where it was held that the possession of the tenants who were in occupation of the land under the mortgagee was not adverse to the mortgagor who had redeemed the mortgage under whom they were originally holding. So far as that case is taken to decide the question as a matter of law I am not prepared to follow it. Seshamma Shettati V/s. Chickaye Hegade (1902) I.L.R. 25 Mad. 507 cited therein left the question entirely open and the Allahabad case cited. The Collector of Basil V/s. Sarnam Gharak (1911) 8 All. L.J. 802 was the judgment of a single judge and with all respect to the learned Judge it is difficult to see how the tenancy created by the mortgagee continues after redemption when the learned Judge himself has held that it is not binding on the redeeming mortgagor.

(3.) In Chinnappa Thevan V/s. Pazhaniappa Pillai (1915) 2 L.W. 1132 however, there was a document, Ex G, which was construed as transferring the mortgagee's rights to tlje. mortgagor. In that case the mortgagor as assignee will hsjve the rights of his assignor, the mortgagee, and the ruling may be supported on that ground.