Gujarat High Court
Puj Khengar Nyalchand And Ors. vs Thacker Shankerlal Naranji And Ors. on 2 August, 1991
Equivalent citations: (1992)1GLR440
JUDGMENT
J.N. Bhatt,.J.
1. By this appeal, the appellants have challenged the judgment and decree passed by the learned Extra Assistant Judge of Kutch at Bhuj, in Regular Civil Appeal No. 128 of 1975, by invoking the aids of the provisions of Section 100 of the Civil Procedure Code, 1908, ('Code' for short hereinafter).
2. A short, but very substantial and significant, following question of law which has surfaced in this appeal is with regard to the right to recover possession in respect of mortgaged property in which appellants' claim tenancy rights.
Whether the defendants (appellants) who were tenants previous to the mortgage were entitled to retain possession of the mortgaged property on redemption cither as contractual tenants or as statutory tenants?
In order to appreciate the merits of the appeal and challenge against it, it would be necessary to refer the relevant material facts giving birth to the present appeal.
3. The appellants are the original defendants Nos. 1 to 9 and respondents Nos. 1 and 2 are the original plaintiffs and respondents Nos. 3 to 7 are the original defendants Nos. 10 to 14. They are hereinafter referred to as the 'plaintiffs' and the 'defendants' for the sake of convenience and brevity.
4. The plaintiffs initiated a legal battle by filing Regular Civil Suit No. 4 of 1973 in the Court of the learned Civil Judge (J.D.), at Rahpar,Kutch District, for redemption and possession in respect of immovable residential property, which is elaborately described in para 3 of the plaint,which is hereinafter referred to as the 'suit property'.
5. The plaintiffs are brothers and defendants Nos. 10 to 14 are also brothers and sisters. One deceased Naranji Khimji and one deceased Shamji Khimji, who were the owners of the suit property, were also real brothers. The plaintiffs and defendants Nos. 10 to 14 arc the heirs and legal representatives of the said original owners-Naranji and Shamji, sons of Khimji. Naranji Khimji and Shamji Khimji had mortgaged the suit property with the father of the defendant No. 1-Khengar Nyalchand and deceased. Kapurchand Nyalchand. Defendant No. 1 is the father of defendant No. 2 and uncle of defendants Nos. 3 to 8. Defendant No. 9 is the sister of defendant No. 1 and deceased Kapurchand Nyalchand was the father of defendants Nos. 3 to 8.
6. As per the case of the plaintiffs, the suit property was mortgaged by deceased Naranji Khimji and Shamji Khimji to one Nyalchand Laxmichand,who happened to be the ancestor of defendants Nos. 1 to 9, in S.Y.1994 (1938 A.D.) for 800 Koris (a currency denomination of the Erstwhile Kutch region; and almost three Koris was equivalent to one rupee) and the possession was given by virtue of the mortgage transaction to the said mortgagee. The plaintiffs claimed that they have got 1/2 share in the suit property and remaining 1/2 share is of defendants Nos. 10 to 14. The original mortgagors, Naranji Khimji and Shamji Khimji, died leaving plaintiffs Nos. 1 and 2 and defendants Nos. 10 to 14. Plaintiffs are the sons of deceased Naranji Khimji and defendants Nos. 11 to 14 are the daughters of deceased Shamji Khimji. In short, the original plaintiffs and defendants Nos. 13 to 14 are the heirs of the original mortgagors and defendants Nos. 1 to 9 are the original heirs of original mortgagees in possession,
7. As the suit property was mortgaged with the ancestors of defendants Nos. 1 to 9, the heirs of deceased mortgagors, as aforesaid, filed suit for redemption and possession. The plaintiffs, inter alia, contended that the first mortgage transaction took place on S.Y. 1994, Magsar Vad 11 (28-12-1938 A.D.), by the document produced, at Ex. 78, which was in favour of Nyalchand Laxmichand executed by the original owners Naranji Khimji and Shamji Khimji,for 800 Koris. The plaintiffs also relied on a writing dated 15th July, 1956, whereby, an additional amount of Rs. 551/- was advanced by the mortgagees to one of the mortgagors, i.e., Shamji Khimji. Thereafter, by virtue of a registered deed dated 5th February, 1963, a further loan of Rs. 500/- was taken and the deed was executed by one of the mortgagors, one Shamji Khimji in favour of Velji Nyalchand, Nemchand Khengar (defendant No. 2) and Nemchand Kapurchand (defendant No. 3). Besides there was further advance of Rs. 300/- by virtue of deed dated 5th June, 1966, Ex. 69, executed in favour of one Nemchand Khengar (defendant No. 2) by one Shankerlal Naranji (plaintiff No. 1). Thereafter one Babulal, son of Shamji Khimji (defendant No. 10) took an additional amount of Rs. 300/- by way of loan from Khengar Nyalchand (defendant No. 1) by virtue of a mortgage deed dated 7-11-1971 Ex. 71. It is the case of the plaintiffs that Shamji Khimji and defendant No. 10 took loan including mortgaged debt for their 1/2 share, the total amount of which comes to Rs. 1,351/- by mortgaging the suit property with defendants Nos. 1 to 9. As pleaded by the plaintiffs, 400 Koris remain outstanding from S.Y. 1994 (1938 A.D.) for 1/2 share of the deceased Naranji Khimji. Plaintiff No. 1, Shankerlal Naranji, took further loan of Rs. 300/- on the suit property after the death of Naranji Khimji. Therefore, in short, as per the ease of the plaintiffs, there was a total debt of Rs. 1,784-33 Ps. due to be paid to defendants Nos. 1 to 9. Plaintiffs and defendants Nos. 10 to 14 were ready to pay the said amount in respect of mortgage transactions pertaining to the suit property. The plaintiffs contended that as defendants Nos. 10 to 14 did not agree to be impleaded as plaintiffs, they were joined as defendants. The plaintiffs demanded and called upon defendants Nos. 1 to 9 to hand over possession of the suit property by accepting the mortgage amount. They did not comply with the said demand. With the result, the plaintiffs filed Regular Civil Suit No. 4 of 1973 for redemption of the mortgaged suit property and possession thereof.
8. Defendants Nos. 2 to 9 and 11 to 14 did not contest the suit. Defendant No. 1 filed written statement, at Ex. 17 and defendant No. 10 filed written statement, at Ex. 19. Defendant No. 10 supported the claim of the plaintiffs. Defendant No. 1 raised several objections in his written statement, Ex. 17. He, inter alia, contended that the plaintiffs are not entitled to possession of the suit property. According to his contention, the suit property was taken on lease by his ancestors and his ancestors were in possession of the suit property since last many many years. Thus, according to the case of defendant No. 1, there was a tenancy in respect of the suit properly long before the alleged first mortgage transaction was entered into. He further contended that he is in possession of the suit property as a tenant and the Rent Act is applicaple to the Town Rahpar,where the suit property is situated, and, therefore, he is entitled to the protection provided under the Rent Act. He further contended that a original rent note is in possession of the plaintiffs. Thus, it is the contention of defendant No. 1 that the plaintiffs are not entitled to get possession of the suit property from him as he is a tenant therein prior to the mortgage transactions.
9. As regards the mortgage transaction, it is the case of defendant No. 1 that one of the original owners/mortgagors, Shamji Khimji, had 1/2 share in the suit property and all the heirs of deceased Khimji were not joined as plaintiffs. The defendants also relied on the rent note, Ex. 77, which was executed on Bhadrwa Sud 10, S.Y. 1978 (11-9-1921 A.D.). In short, the defence of the contesting defendant No. 1 is that the suit property was taken on lease and was occupied by his ancestors previous to the mortgage transaction. Therefore, the defendants are entitled to retain possession of the mortgaged property, on redemption.
10. In view of the pleadings of the parties, issues came to be settled,at Ex. 37. On application of the oral and documentary evidence, the trial Court was pleaded to pass a decree for redemption and for possession of the suit property. The trial Court also found that defendant No. 1 had failed to prove tint lie was a tenant in respect of the suit property. Therefore, the trial Court was pleased to allow the suit and directed the plaintiffs and defendants Nos. 10 to 14, who are the heirs of deceased mortgagors, to pay or to deposit an amount of Rs. 1,784-33 Ps. by way of mortgage amount and directed defendants Nos. 1 to 9, who are the heirs of the original mortgagee in possession to hand over possession of the suit property, by passing a preliminary decree, on 19th November, 1975.
11. Being aggrieved by the said judgment and decree of the trial Court in Regular Civil Suit No. 4 of 1973, original defendants Nos. 1 to 9 preferred Regular Civil Appeal No. 128 of 1975 in the District Court of Kutch, at Bhuj. The learned Extra Assistant Judge, Kutch at Bhuj, was pleased to uphold the finding of the trial Court. The contentions raised by the appellants in that appeal were not accepted. However, the decree of the trial Court was modified with respect to the appointment of Commissioner for accounts in respect of the expenditure incurred for improvement. Essentially, the plea of the original defendants was not accepted and the said plea in appeal ended in smoke. Hence, the present appeal.
12. Learned Counsel for the appellants/original defendants Nos. 1 to 9, has, forcefully, contended that the Courts below have, seriously, erred in passing decree for possession of the suit property as defendants were tenants previous to the mortgage transaction. Thus, according to his contention, the defendants are entitled to retain possession of the mortgaged suit property on redemption as the tenancy would revive on redemption as they are protected tenants under the Bombay Rent Act. This contention is, seriously, controverted by the learned Counsel for the respondents/original plaintiffs. Thus, the controversy has shrunk down to a very narrow dimension. Decree passed for redemption of the suit property is not challenged. The later part of the impugned judgment and decree, granting possession of suit property is, seriously, assailed.
13. The appellants/original defendants Nos. 1 to 9, claimed that they arc heirs of sitting tenant from a period much before the mortgage transaction was entered into. According to the case of the original defendants/mortgagees, there was a relationship of landlord and tenant prior to the mortgage transaction between the parties. The contention raised before this Court is that the trial Court and the first appellate Court have erroneously, rejected this plea raised by defendants Nos. 1 to 9. Having examined the voluminous testimonial and documentary evidence and the Marathon submissions made before this Court, the aforesaid contention is found full of substance.
14. There is no dispute about the fact that defendants Nos. 1 to 9 (mortgagees) are heirs of the original tenant. The Courts below have committed a grave error in passing decree for actual physical possession of the suit property while granting the relief of redemption. There is no dispute about the execution and existence of rent note, produced at Ex. 77. It is a rent note executed by one Nyalchand Laxmichand, in favour of Naranji Khimji on S.Y. 1978 Bhadrwa Sud Dasam (11-9-1921 A.D.). Ex. 77, Rent Note, undoubtedly indicates commencement of tenancy with effect from Kartak Sud 2 of S.Y.1977 (12-11-1920 A.D.). This rent note is executed in favour of Naranji Khimji,who is the ancestor of original plaintiffs/respondents herein, be deceased Nyalchand Laxmichand, who is the ancestor of defendants Nos. 1 to 9 (present appellants). Thus, the original defendants are the heirs of the original tenant(lessee) and the original plaintiffs are the heirs of the original landlord (lessor).The Courts below have seriously, erred in not properly appreciating the tenor and the correct interpretation of rent note, Ex. 77. It is crystal clear from the rent note, Ex. 77, that the tenancy commenced on 12th November, 1920 in favour of Nyalchand Laxmichand, who is the ancestor of original defendants Nos. 1 to 9.
15. It is true that in the initial portion of the rent note, Ex. 77, it is mentioned that one room (belhak room) was given on rent. But, while reading the entire rent note, the tenor of it leaves no any manner of doubt that the entire suit property known as' 'Deliband House', (in local parlance known as 'Bheni' in Kutch Saurashtra region) was given on rent. Expressions like 'te Bheni nu' (of that Behni) and 'S.Y. 1977 na Kartak Sud 2 thi bhade lithi chhe' (is rented with effect from Kartak Sud 2 of S.Y. 1977),coupled with the evidence of defendant No. 1, Khengar Nyalchand, Ex. 68, who is the son of the execulant of the rent note, Ex. 77, are the indicative of the fact that the entire suit property was given on rent with effect from 12th November, 1920, on a yearly rent of 15 Koris. It is clearly testified by Khengar Nyalchand in his evidence, at Ex. 68,that the suit property was taken on rent by his father in S.Y. 1977 in the month of Bhadrwa Sud. He is also in possession of the suit property since last more than 60 years when he was examined on 16th September,1975. That means, he is in actual physical possession of the suit property, as a tenant, since more than 75 years as on today. This part of the evidence,supported by the rent note, Ex. 77, executed 71 years before, leaves no any manner of doubt that the suit property was given by the owners, thereof, on rent as early as in the month of November 1920. The Courts below have,unfortunately, failed to appreciate this substantial part of the evidence in its proper perspective, resulted into grave miscarriage of justice, which is required to be remedied.
16. The contention of the learned Counsel for the respondents/original plaintiffs is that there was implied surrender of the tenancy right in view of the execution of the mortgage deed by the original tenant. This submission may appear to be, prima facie, subtle but not sustainable. Unfortunately, this submission was upheld by both the Courts below.
17. In order to appreciate this ingenious submission, it would be necessary to refer to the relevant evidence and the provisions of law. It is true, Section 111(f) of the Transfer of Property Act, 1982 ('T.P. Act' for short hereinafter),provides one of the 11 modes of termination of lease. So the lease could be terminated or could expire by implied surrender, if any. In fact, whether or not, any implied surrender of the tenancy rights by the sitting tenants was there in the case on hand, is required to be, seriously, examined.
18. It is contended by the learned Counsel for the respondents/original plaintiffs that after execution of the mortgage transaction, the tenancy right would not survive as doctrine of implied surrender would terminate the lease between the parties. This proposition advanced on behalf of the original plaintiffs cannot be subscribed to. It cannot be contended that such an implied surrender would take place merely because a tenant has become a mortgagee. Merely because a mortgage transaction was entered into by a tenant in respect of the tenanted property, it cannot be 'ipso facto' inferred that there was relinquishment or renunciation of right in respect of tenancy by the sitting tenants. The tenancy commenced by virtue of Ex. 77 and other evidence, on record, on 12-11-1920. The mortgage deed relied on by the plaintiffs, at Ex. 78, was executed on 28-12-1937. In fact the said writing at Ex. 78 also mentions about the tenancy rights in respect of the suit property. The existence of or execution of usufructuary mortgage deeds in favour of the sitting tenants of the property would not tantamount to extinction of tenancy either by way of doctrine of implied surrender or by merger. Therefore, the finding of both the Courts below and the decree for handing over actual physical possession of the suit property, notwithstanding the fact that the original defendants Nos. 1 to 9 were sitting tenants from a period before the date of creation of mortgage in 1938 A.D. is erroneous.
19. The contention that two inconsistent and incompatible rights would not, jointly, survive, prima facie, may appear to be captivating but not acceptable. It is also contended that the doctrine of implied surrender would be attracted as soon as the tenant advanced monies and he would be deemed to have surrendered his tenancy by application of implied surrender contemplated under Section 111(f) of the T.P. Act. This contention, in the facts of the present case, is without any substance and was, erroneously, accepted by both the Courts below. It is also contended that there is no mention in the mortgage deeds that the tenancy would survive on redemption of the mortgage. This submission is also very subtle but without any substance. It cannot be contended that mere non-mentioning of continuance of tenancy rights existed prior to the execution of the mortgage would be pushed back in oblivion and it should be construed as discontinuance of the tenancy rights. On the contrary, it could be contended that on-mentioning of relinquishment of the rights of the sitting tenant in the mortgage deed on redemption, the tenancy would revive and continue and as such, the owner shall not be entitled to recover the possession of the demised property relying on the provisions of Section 111(f) of the T.P. Act.
20. Learned Counsel for the respondents/original plaintiffs has placed reliance on a decision of the Kerala High Court in the case of Godasankara Valid Raja v. Tharappan Vareed . In this decision, reliance was placed on the following three decisions:
(i) AIR 1953 Travancore-Cochin 584, (Raman Velu v. Lekshmi).
(ii) , (Meenakshi v. Godar Namboodiripad) and
(iii) AIR 1957 AP 619, (Venkayya v. Venkata Subbarao).
It was held in the said decision of the Kerala High Court that the provision of Section 111(f) is based on the principle that whenever a certain relationship exists between two parties in respect of a subject-matter and a new relationship arises as regards the identical subject-matter, if the two sets of relationships cannot co-exist as being inconsistent and incompatible, that is to say, if the latter can come into effect only on termination of the earlier, that would be deemed to have been terminated in order to enable the latter to operate. In that case, in the light of the above principle, in the facts of that case, it was held by the Kerala High Court that the relationship of mortgagor and mortgagee was inconsistent and incompatible with the relationship of lessor and lessee. Therefore, it was held, in view of the evidence on record of that case, that the tenancy right must be deemed to have been surrendered impliedly on account of mortgage transaction. The decision was rendered in view of the evidence on record, interpreting the tenor of lease deed and subsequent mortgage deed and in the facts of that case. Having examined the said decision, this Court is of the opinion with due respect that the said decision does not lay down correct exposition of the relevant law. The proposition which is propounded in the said decision of the Kerala High Court is based on the aforesaid three decisions of three different High Courts. The proposition and the view that there would be merger by implied surrender under the provisions of Section 111(f) of the T.P. Act with great respect does not seem to be correct. As against that, the view of the Allahabad High Court in the case of Kallu v. Diwan, reported in ILR 24 All. 487, and the subsequent decision by the Allahabad High Court on the same point rendered in the case of Lachman Das v. Heera Lai , that the tenancy would not merge in such a situation by implied surrender and that the tenancy would remain in abeyance on redemption of the mortgage appears to be correct one and is also accepted by this Court in a decision rendered in the case of Patel Atmaram v. Patel Babubhai, . It was unequivocally held by this Court in the abovesaid decision that no question of merger could at all arise merely by the reason that the tenant subsequently became a sub-mortgagee. It was found in the said case by this Court that there was no substance in the contention that there would be merger of tenancy by implied surrender in the event of execution of mortgage transaction. Thus, the view taken by the Kerala High Court and relied on by the learned Counsel for the respondents/original plaintiffs, is not correct.
21. Nonetheless, the aforesaid decision of this Court in the case of Patel Atmaram (supra) is not followed by the trial Court. The aforesaid decision of the Allahabad High Court in the case of Lachman Das (supra) , was also relied on before the appellate Court. However,decision of this Court and the decision of the Allahabad High Court, as aforesaid, were not followed by the appellate Court holding that they were not applicable in view of the decision of the Supreme Court in Shah Malhurdas v. Nagappa . The learned appellate Judge also found that in view of the judgment of the Supreme Court in Shah Mathurdas's case (supra), the decision of this Court in Patel Atmaram's case (supra) and the decision of the Allahabad High Court in Lachman Das's case(supra),are, impliedly, overruled. With due respect to the learned appellate Judge, this observation is nut sustainable. In the opinion of this Court, as such, the appellate Court has committed, serious error in placing reliance on the judgment of the Supreme Court in Shah Matliurdtts's case (supra) and not considering the decision of this Court in Patel Atmaram's case (supra). The decision of the Supreme Court in Shah Mathurdas's case (supra) is not applicable to the facts of the case on hand. The ratio of the judgment of the Apex Court of the land is laid down in the light of the facts of the case before the Court. It may be mentioned that strong reliance is also placed before this Court by the learned Counsel for the respondents/original plaintiffs on the said decision. In that decision, it was held that the tenancy right was extinguished and on redemption, the owner/mortgagor was entitled to possession. That decision was rendered by the Supreme Court in the light of the facts of that case and particularly in view of the terms and conditions incorporated in the mortgage deed itself.
22. In the said decision, the mortgage deed was described as 'possessory mortgage deed' for Rs. 10,000/-. The respondent mortgagor stated inter alia,as follows:
I have given you the house-site in possessory mortgage in consideration of the aforesaid amount. The said property is in your possession as the last tenant by the date 6 November, 1953. The possession thenceforth is confirmed by this Deed of Promissory Mortgage Hence you are to cither use the house-site and shop premises for home (personal) purpose or let it to anybody. The income that may be received by giving the property on rent is to be appropriated by you towards the interest on the said amount. I shall not pay you any interest separately. I shall not ask for accounts in respect of the income of (he house-site from you. I am to pay all the Government dues. I am also to cany out repairs of all sorts to the bouse premises, and 1 shall do so. If I fail to pay Government dues and if I do not defray the costs of the repairs you are to pay all the said Government dues and defray the costs of the repairs. The aforesaid amounts which you may have to pay and spend will be paid by me to you together with interest at the rate of Re. 0-12-0 annas twelve per cent per month. The above mortgaged property is charged with the liability of repaying the aforesaid amounts. The period of this document is 10 years from 7 November, 1953. I shall pay you the aforesaid amount within the said period and redeem the house-site from the mortgage. If I fail to do so you are to carry on the 'vahiwat' of the house-site under the above agreement. If you do not wish to keep the amount with me beyond the above period, you are to sell the said mortgaged property through Court and recover the entire amount due and payable to you.
In view of the facts of the case and the aforesaid stipulations made in the mortgage deed, it was held by the Supreme Court that the mortgage deed established, beyond doubt, that the effect of the deed was inconsistent with the continuance or subsistence of the lease because the lease was to continue only upto or conclude from 6th November, 1953, and on the redemption of the mortgage the respondent had the right to recover possession both on terms of the mortgage deed and under Section 62 of the T.P. Act. It is true that the tenancy existed prior to the execution of the mortgage deed by the tenant. Nevertheless,though the mortgage deed was made on 21st May, 1953, tenancy was continued till about 6th November, 1953. Thus the possession of the appellant/tenant in that case, as a mortgagee, was confirmed from 7th November, 1953 and that the terms in the mortgage deed unequivocally showed that no tenancy was to exist from 7th November, 1953, but the relationship was that of mortgagor and mortgagee. In the facts of the said case, it was found that tenancy right was extinguished on account of the terms incorporated in the mortgage deed between the parties. Thus, the decision was rendered by the Supreme Court in the light of the facts and circumstances and the terms and conditions of the mortgage deed in that case. Therefore, the said decision will not be applicable to the peculiar facts of the present case. With the result, the learned appellate Judge has committed a serious error in placing reliance on the said decision of the Supreme Court,which is inapplicable to the facts of the present case.
23. Not only that the said decision was considered by the Supreme Court in case of Nond Lal v. Sukh Dev. reported in 1987 (Supp.) SCC 87. The Supreme Court distinguished the decision in Shah Mathurdas's case (supra). The decision of the Supreme Court in the case of Gambangi A. Naidu v. Behara V. Patro, , was followed in Nand Lal's case (supra) by the Supreme Court. In Gambangi's case (supra) the owner of the suit property had executed two usufructuary mortgage deeds in favour of the tenant of the property. The deed, inter alia, stipulated that the rental of the laud payable by the tenant was to be adjusted against the interest payable by the mortgagor under the deed and that when the principal and interest would be repaid such payment was to be endorsed on the deed and the deed as also the land shall be "delivered to the possession of mortgagor". The mortgagor filed a suit for redemption of the mortgage and obtained a preliminary decree. After death of the mortgagor, the respondents being his legal representatives filed an application for passing a final decree by way of ascertainment of the amount due and for delivery of possession upon deposit of entire dues so ascertained. The question as to whether delivery of actual or physical possession of the property could be obtained by the mortgagor owner was the issue before the Supreme Court in that case. It was held by the Supreme Court in the circumstances of the case that there was no merger of the interest of mortgagee and the rights of the tenant. It was further observed by the Supreme Court that for a merger, it is necessary that the lesser estate and a higher estate should merge in one person at one time and in the same right and no interest in the property should remain outstanding. The Supreme Court was further pleased to hold that there cannot be a merger of a lease and a mortgage in respect of the same properly since neither of them is a higher or lesser estate than the other. Even if the rights of the lessee and the rights of the mortgagee in respect of a property were to be united in one person, the revision in regard to the lease and the equity of redemption in regard to the mortgage would be outstanding in the owner of the property and accordingly there would not be a complete fusion of all the rights of ownership in one person. Thus, it was held by the Supreme Court in Gambangi's case (supra) that there was no relinquishment of the tenancy and there was no merger.
24. The Supreme Court in Nand Lal's case (supra) relied upon the said decision in Gambungi's case (supra). In Nand Lal's case (supra), the question before the Supreme Court was:
Whether the relationship of landlord and tenant must be treated to have come to an end when the lessees accepted new relationship and become mortgagees of the same property which they were holding as tenants?
In the facts and circumstances of the case and relying upon the ratio of the decision rendered in the case of Gambangi (supra) and distinguishing the decision of the Supreme Court in Shah Mathurdas's case (supra), the Supreme Court held that on redemption of the mortgage, the tenancy right did cease in that case.
25. In view of the aforesaid discussions, there is no any manner of doubt in the mind of this Court that the learned appellate Judge committed a serious error in placing reliance on the decision of the Supreme Court in Shall Mathurdas's case (supra). The ratio and the decision in that case had been rendered in the light of the peculiar facts of that case. As stated herein before, the facts of the present case would, undoubtedly,indicate that there was no surrender of the tenancy right,either express or implied. The provisions of Section 111(f) of the T.P. Act would not be attracted in the present case and, therefore, there is no question of merger of tenancy rights. The original plaintiffs would not be entitled to delivery of actual physical possession. No doubt, on redemption, 'symbolic possession' could be given. It may also be emphasised that the effect of execution of usufructuary mortgage deed was that the tenancy rights were kept in abeyance and they would revive upon redemption of the mortgage.
26. The answer to the question was that on redemption of the usufructuary mortgage, the tenant mortgagee could be directed to deliver actual or physical possession of the suit mortgaged property to the landlord mortgagor, must depend upon whether there was surrender, express or implied, of the rights of the tenant when the possessory mortgage was executed by the landlord mortgagor in favour of the tenant mortgagee. this Court has dispassionately examined the facts and circumstances and the terms and conditions of the mortgage deeds and they do not permit this Court to uphold the impugned judgment and decree. There is no inconsistency or incompatibility in one person being tenant and mortgagee of the property. What was happened in the present case is that instead of paying rent to the landlord, the same is adjusted against the payment of interest to (he tenant mortgagee by the landlord mortgagor. In the facts of the present case, it would be unthinkable to attribute to the tenant the intention to surrender the tenancy rights held by him since 1920 only on account of he is having lent money. Merely because there was execution of the mortgage in respect of the property held by a person as a tenant would not 'ipso facto'1 disentitle to hold the property as a tenant.
27. It is found, without any iota of doubt, from the evidence on record that original defendants acquired tenancy rights on 12th November, 1920 in respect of the suit property and thereafter the first mortgage deed was executed on 28th December, 1937. Thus, the first usufructuary mortgage came to be executed 16 years after commencement of the tenancy and this aspect has remained uncontroverted. Could it be conceived in absence of any stipulation in the usufructuary mortgage deeds that the intention of the tenant was to relinquish the valuable tenancy right acquired in 1920 by advancing 800 Koris to his landlord in 1937? Answer would be obviously in negative. On the contrary, the recitals' in Ex. 78 manifestly demonstrates that the tenancy right held by the tenant prior to the mortgage transaction in respect of the suit property was continued and confirmed except with a change in made and rate of payment of rent. So the recitals made in Ex. 78, undoubtedly, support the version of the tenant. Not only that, thereafter in 1938, below Ex. 78, clarification was incorporated, whereby, the tenant mortgagee was prevented from carrying out new construction. It also shows that the suit property was let and it was confirmed. Subsequently, an endorsement is made by the mortgagor, below Ex. 78, in Maghsar Sud 11 of S.Y. 2000(1944 A.D.)and it is further confirmed that the entire suit property was rented and the rental was adjusted against the amount of interest. Lastly, in the same deed, a further endorsement came to be made on Vaishak Sud 1 of S.Y. 2001 (1945 A.D.), which,unequivocally,indicates that the amount of interest payable by the mortgagee was adjusted against the rental amount. This was further confirmed in subsequent document, Ex. 79.
28. A plain perusal of the subsequent documents, Ex. 65, dated 5-2-1963, agreement between the parties for further loan of Rs. 300/ dated 5-6-1966,Ex. 69 and the document, Ex. 71 dated 7-11-1971, it cannot be said, even for a moment, that the sitting tenant had relinquished his tenancy rights. All that has happened is that instead of paying rent to the landlord, the tenant adjusted the rent against the amount claimable by him by way of interest from the landlord. Thus, obviously, there was no express surrender of the tenancy rights. There is no question of implied surrender or merger merely by reason of the fact that the tenant subsequently became a mortgagee also. Under these circumstances, the serious contention raised on behalf of the original plaintiffs that there was a merger by implied surrender under Section 111(f) of the T.P. Act, is without any merit.
29. It is apparent from the facts of the present case and the terms of the usufructuary mortgage deeds that the liability to pay rent to the lessor/mortgagor during the currency of the mortgage remained althroughout and it would run counter to the proposition or condition of an implied surrender or merger of tenancy rights. Thus, in the opinion of this Court, neither there was express surrender nor implied surrender of the tenancy rights of a sitting tenant after the execution of usufructuary mortgage deed.
30. Learned Counsel for the original plaintiffs canvassed before this Court that the intention of the parties plays very important role in determining as to whether there was surrender of tenancy rights or not, which has to be gathered from the facts and circumstances of the case. This submission is not disputed. The intention of the parties is apparently and manifestly clear from the facts and circumstances of the present case and the terms and conditions of the mortgage deeds and it cannot be conceived, even for a moment, that the tenant had intented to relinquish his valuable tenancy right acquired by him as early as in 1920. It was also contended on behalf of the original plaintiffs that non-mentioning of continuance of tenancy rights on redemption would mean that the tenancy rights were surrendered. In fact, in such a situation, the position should be other way round. With a view to ascertain as to whether tenant had an intention or animus to forgo his tenancy rights it would be useful to find it out from the learns of the mortgage deeds. It is also an admitted fact that there is no mention in any of the mortgage deeds that on redemption actual or physical possession will be delivered to the mortgagor. This aspect also is one of the indications running contrary to the contention of implied surrender of the tenancy rights.
31. In view of the facts and circumstances narrated hereinbefore and the entire conspectus of the evidence, on record, the decree of the trial Court with regard to the actual physical possession is required to be quashed as the appellants/defendants Nos. 1 to 9 would be entitled to retain possession of the mortgaged property on redemption as statutory tenants since they are protected tenants under the Bombay Rent Act. Therefore, the appeal must succeed to that extent.
32. In the result, the appeal is partly allowed and the impugned judgment and decree to the extent of. grant of relief of actual or physical possession is accordingly set aside.
33. It is, however, clarified that the plaintiffs will be entitled to only symbolic possession of the suit property. The decree passed by the lower appellate Court shall be modified by decree for redemption on the respondent/original plaintiffs depositing Rs. 1,784.33 ps. within a period of four months from today, provided that the amount is not deposited as per the decree of the trial Court, or within the further time as may be extended from time to time by the trial Court. In the peculiar facts and circumstances of the case, there shall be no order as to costs. The impugned judgment and decree shall stand modified accordingly.