A RANGASWAMI AIYAR Vs. JAINABU BIBI AMMAL

JUDGEMENT

(1.) These two appeals both arise out of a suit on an usufructuary mortgage. Appeal No. 107 of 1938, is the plaintiff's appeal against the disallowance of a part of his claim for rent on the hypotheca which was leased back to the mortgagors. C.M.A. No. 169 of 1940, is preferred against the order scaling down the decree under Secs.8 and 19 of Act IV of 1938. The suit is based on a mortgage, dated 29 September, 1930 executed by the first defendant and her husband, Shaik Farid Mohamed Vavu Khan Rowther for a sum of Rs. 25,000, of which admittedly only Rs. 19,000 was paid. There was a lease to the mortgagors on the 1st October, 1930, under Ex. C for two years. This was renewed in 1933 for one year by Ex. D and by Ex. E for a further year which terminated on the 29 November, 1934. According to the terms of Ex. E, the rent of Rs. 1,995 was payable on the 29 September, 1934. There was no fresh lease deed, after Ex. E. was executed; but it has been found--and the correctness of the finding is not disputed--that the defendants continued in possession and enjoyment of the land up to the time of the suit. On 14 December, 1934, the plaintiffs sent a notice demanding the mortgage amount and arrears of rent. On the 2nd September, 1935, there is a letter from the husband of the first defendant which indicates that the relations between the parties were friendly. On the 25 September, 1935, we have Ex. F, sent by Shaik Farid Mohamed Vavu Khan Rowther, the husband of the first defendant, to the plaintiff in which he says "as soon as he is well he will come in person to pay the entire amount due and execute the deed". Ex. G-2 is a further notice dated 31 October, 1935. Ex. F-2, dated 11 July, 1936, is a letter in which the defendant's husband asks for time to pay the money and in Ex. J, dated 30 November, 1936, we have a letter from one K. H. Ussain Rowther, who appears to be an agent or representative of the defendants which contains the statement that they, (apparently the defendants) thought that the plaintiff should agree to their taking the properties for five years after fixing the amount "in respect of the arrears of rent due upto this date."

(2.) The learned Subordinate Judge has found that there was no oral lease for the period, following November, 1934, such as was alleged in the plaint and has given a decree only for damages for use and occupation for the period upto November, 1936, and has given no decree for rent or for damages for the broken period ending with the filing of the suit in. March, 1937. It is no doubt true that there is no very clear evidence of any definite oral lease for this period; but it is certainly established by the documents in the case, particularly the Exs. F and J, that the defendants must have been in possession under some arrangement whereby they agreed to pay rent and to execute a formal lease deed when convenient. It would appear that the execution of the lease deed was prevented by the illness of the first defendant's husband. Their continued occupation during this period was evidently on the basis that they were to go on paying the rent as they had paid previously.

(3.) The defence was a plea that on the termination of the lease in November, 1934, the defendants asked the plaintiff to take possession of the land and that he omitted to do so and that subsequently the land was leased out in order to save loss after it had been lying waste for sometime. Presumably it is a leasing by the defendants to which this rather ambiguous pleading refers. There is no real evidence of any invitation. to the plaintiff to take possession of the land. The documents filed in the case make it quite clear that the land was being enjoyed by the defendants under an understanding that a formal lease would be executed similar to the previous leases. On this state of evidence we are of opinion that the lower Court was wrong in awarding only damages for use and occupation and that the decree should properly have given rent at the same rate which prevailed during the currency of the written leases.