Kerala High Court
Thresiamma George vs P.V.Kunjamma on 22 June, 2011
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 285 of 1996(A)
1. THRESIAMMA GEORGE
... Petitioner
Vs
1. P.V.KUNJAMMA
... Respondent
For Petitioner :SRI.K.JAGADEESCHANDRAN NAIR
For Respondent :SRI.K.RAVEENDRAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :22/06/2011
O R D E R
P. BHAVADASAN, J.
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S.A. No. 285 of 1996
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Dated this the 22nd day of June, 2011.
JUDGMENT
The plaintiffs, who lost before the courts below are the appellants.
2. The facts absolutely necessary for the disposal of this appeal are as follows:
Ext.A1 mortgage deed dated 21.1.974 was executed in favour of late Balabhadran, the husband of the first defendant and father of defendants 2 to 5 for a period of one year for a sum of Rs.7000/-. The mortgagee was allowed to appropriate the interest from the rent due towards him. Since the period of mortgage has expired, plaintiffs are entitled to redeem the same. Inspite of demand, the defendants were not willing to have the property redeemed. Hence the suit.
3. The suit was resisted by the defendants by pointing out that even prior to the mortgage in favour of S.A.285/1996. 2 Balabhadran, he was in possession as a lessee and even assuming that the mortgage could be redeemed, the lease survives. Therefore eviction can be obtained only by taking recourse to the provisions of the Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965, hereinafter referred to as the Act. They also contended that by virtue of Ext.B1 agreement for sale, the plaintiffs had agreed to sell the property to Balabhadran and possession of Balabhadran thereafter was under the agreement and they were entitled to protection under Section 53A of the Transfer of Property Act. They pointed out that the mortgage is no longer in existence since it has been extinguished by the terms of Ext.B1. They also expressed their readiness and willingness to perform their part of the contract in relation to Ext.B1 agreement. On the basis of these contentions they prayed for a dismissal of the suit.
4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony P.W.1 and documents marked as Exts.A1 to A4 from the side of the S.A.285/1996. 3 plaintiffs. The defendants had D.W.1 examined and Exts.B1 to B8 marked. The trial court on an evaluation of the evidence found that the mortgage stood extinguished by virtue of the terms of Ext.B1 and the plaintiffs are entitled to the benefit of Section 53A of the Transfer of Property Act. Hence the suit was dismissed.
5. The aggrieved plaintiffs carried the matter in appeal as A.S.120 of 1992. The lower appellate court after evaluating the evidence came to the conclusion that the lease survived and so also the respondents before the said court were entitled to the benefit of Section 53A and therefore the dismissal of the suit by the trial court was confirmed. Hence the Second Appeal.
6. Notice is seen issued on the following questions of law:
A. Whether on the execution of the mortgage there is not an implied surrender of the pre-existing lease in order to enable the mortgage to come into operation.
S.A.285/1996. 4
B. What is the difference between merger and implied surrender?
C. What are the essential pre-requisites for invoking the protection of Section 53A of the Transfer of Property Act? Should the act in furtherance of the contract be an independent and subsequent act? What is meant by ready and willing? Is it enough that the purchaser is prepared to pay proportionate price for the available extent of land? Can the mortgagee in possession claim to be ignorant of the actual extent?
D. Can the lower appellate court reverse the findings of fact entered by the trial court without an appeal or cross objection being filed against it. Is it open to the appellate court to re-appreciate the evidence especially without an appeal on the point being filed by anybody? Whether in view of the amendment to order 41 Rule 22 made by Act 104 of 1976 it is open to the respondent to challenge the findings without filing any cross objection at all?"
S.A.285/1996. 5
7. Learned counsel appearing for the appellants contended that both the courts below have erred in law in coming to the conclusion that the defendants are entitled to the benefit of Section 53A of the Transfer of Property Act. Learned counsel drew the attention of this court to the fact that the lower appellate court has also come to the conclusion that the lease survives. The lower appellate court is of the opinion that there is no merger of lease in the mortgage on execution of Ext.A1 mortgage deed. According to the learned counsel, by the execution of mortgage deed there is an implied surrender under Section 111(f) of the Transfer of Property Act and the lower appellate court has erred in pursuing the case of merger rather than surrender. As far as Section 53 A of the Transfer of Property Act is concerned, according to learned counsel, the evidence of D.W.1 will clearly show that they were not ready to carry out their part of the contract in terms of Ext.B1 agreement and that is sufficient to show that they are not entitled to the benefit of Section 53A. The contention of the defendants S.A.285/1996. 6 that on measurement the extent of the property was found to be less and they are bound to pay only proportionate price cannot be accepted in view of the description of the property in the schedule to Ext.B1 agreement. It was also contended that both the courts below were wrong in law in coming to the conclusion that the mortgage has been extinguished. According to learned counsel, the suit ought to have been decreed.
8. Per contra, learned counsel appearing for the respondents pointed out that the lower courts were justified in coming to the conclusion that the mortgage stood extinguished by virtue of Ext.B1 agreement and that the possession of the defendants subsequent to Ext.B1 was in terms of Ext.B1 and therefore the courts below were justified in coming to the conclusion that the defendants are entitled to the benefit of Section 53A of the Transfer of Property Act. According to learned counsel, the lower appellate court was perfectly justified in coming to the conclusion that the lease survives in spite of execution of Ext.A1 mortgage. There is S.A.285/1996. 7 nothing in Ext.A1 to show that the lease has either been impliedly surrendered or that there is a merger of lease in the mortgage going by the terms of Ext.A1. Attention was drawn to the fact that the rent payable was to be adjusted towards the interest of the mortgage amount, which would indicate that the lease was kept alive. Learned counsel then went on to point out that the courts below were therefore perfectly justified in coming to the conclusion that the plaintiffs are not entitled to any relief in the suit.
9. The first question that would arise for consideration is whether by execution of Ext.A1 agreement, there is an implied surrender of the lease.
10. Even though the plaintiffs contended that there was no lease in favour of Balabhadran and the only transaction under which the predecessor in interest of the defendants came into possession of the property was by means of Ext.A1 mortgage, that has been found against by the lower appellate court. The lower appellate court has found that Balabhadran was in occupation of the property as S.A.285/1996. 8 a lessee long before the mortgage and even though mortgage was transferred from hand to hand, possession remained with Balabhadran. He was running a business in the premises and consequent on the death of Balabhadran the rights of Balabhadran had devolved on the defendants.
11. Learned counsel appearing for the appellants relied on the decision reported in Shah Mathuradas v. Nagappa (AIR 1976 SC 1565), R. Kanthimathi v. Beatrice Xavier ((2000) 9 SCC 339) and Tarachand v. Sagarbai ((2007) 5 SCC 392) to canvass for the position that on execution of a mortgage deed, there is an implied surrender of the lease.
12. The stand taken by the appellants before this court is that the courts below have erred in law in coming to the conclusion that there is no merger of the lease in the mortgage. The contention is that the question is not one of merger, but one of implied surrender under Section 111(f) of the Transfer of Property Act. The argument advanced on behalf of the appellants is that when the mortgage deed is S.A.285/1996. 9 executed, there is an implied surrender of the lease and the lease no longer survives. It will be useful to refer to the decision referred to by the learned counsel for the appellants in this regard.
13. In the decision reported in Shah Mathuradas's case (supra) it was held as follows:
"A surrender under Cls. (e) and (f) of Section 111 of the T.P. Act, is an yielding up of the term of the lessee's interest to him who has the immediate reversion or the lessor's interest. It takes effect like a contract by natural consent on the lessor's acceptance of the act of the lessee. The lessee cannot therefore surrender unless the term is vested in him: and the surrender must be to a person in whom the immediate reversion expectant on the term is vested. Implied surrender by operation of law occurs by the creation of a relationship, or by relinquishment of possession. If the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the S.A.285/1996. 10 lessor. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. Whether this has occurred is a question of fact. In the present case, if the mortgagor was not able to redeem the appellant mortgagee was to enjoy the property in accordance with the terms of the mortgage and also to sell the property for recovery of debts. This feature shows that the appellant surrendered the tenancy rights."
14. One may at once notice that the said decision was rendered in the context of the terms of the mortgage deed which came up for consideration before the courts. The mortgage deed put the mortgagee in possession of the property and no interest was to be paid. Instead the possession was agreed to remain with the mortgagee. The period for redeeming the mortgage was fixed at 10 years from 1953. There was nothing which would indicate that the lease which was in existence was intended to be continued or it did survive after the execution of the mortgage deed. S.A.285/1996. 11 All the courts concurrently found that going by the terms of the mortgage deed, it was clear that no other relationship was intended to survive except the mortgagor-mortgagee relationship.
15. In the decision reported in Tarachand's case (supra) it was held that when a mortgage deed is executed, there is an implied surrender of lease.
16. That was a case where the lessee had given up his rights altogether and adorned the status of a mortgagee. The decision does not lay down the principle that in all cases of execution of a mortgage deed, there is an implied surrender. In fact it is observed as follows:
"Whether the rights of a tenant have given way to the rights of a mortgagor would essentially depend upon the terms and conditions of the mortgage. If the tenant surrenders the tenancy either explicitly or by necessary implication, the terms of the deed of mortgage shall prevail. Having surrendered the tenancy, it would not lie in the mouth of a mortgagee to contend that as he S.A.285/1996. 12 had been a tenant, he would be entitled to the rights of a tenant.
Section 111(f) of the 1882 Act provides for termination of tenancy by implied surrender. Such implied surrender may be either:
(i) by creation of a new relationship, or
(ii) by relinquishment of possession."
In paragraph 2 of the judgment the terms of the mortgage deed are seen extracted. A reading of the facts of the case will clearly show that after the execution of the mortgage deed, there was no intention on behalf of the parties to have the lease continued and the relationship thereafter was purely that of a mortgagor and mortgagee. Of course, it was also stated in the said decision that suit for redemption is infact a suit for recovery of possession also. The facts of the case are discussed at length in paragraph 21 of the judgment. In the above decision, the decision reported in Gambangi Applaswamy Naidu v. Behara venkataramanayya Patro ((1984) 4 SCC 382) is referred to wherein it was held that in all cases where a mortgage S.A.285/1996. 13 deed is executed during the currency of the lease arrangement, it is not necessary that an implied surrender should be inferred. In paragraph 25 of the decision in Tarachand's case (supra) it is seen observed as follows:
"Although technically a tenant may continue to occupy the premises, once the nature of possession changes resulting in change in his status, which he accepts, the same may amount to virtual taking of possession. In any event, virtual taking of possession is not a sine qua non for implied surrender as the same can be created by a new relationship also."
The decision in Gambangi Applaswamy Naidu's case (supra) cannot be treated as one which lays down the principle that whenever there is a mortgage during the currency of the lease, there is an implied surrender. That was a case where the question that arose for consideration was whether on the execution of a mortgage deed, the relationship of landlord-tenant had come to an end. On the facts of that case, it was held that on execution of an S.A.285/1996. 14 agreement for sale, the old relationship of landlord and tenant comes to an end. It was observed as follows:
"It may be noted that the last portion of the document is equivocal in that it does not mention whether on redemption physical possession is to be delivered or symbolical possession is t be delivered to the mortgagor. But under the terms of the deed one thing is clear that during the currency of the mortgage the liability to pay rent to the lessor-mortgagor (albeit to be discharged by adjustment) is kept alive. If anything such a term clearly runs counter to any implied surrender of the lessee's rights. Secondly, there is no terms fixed for redemption of mortgage property which means that if was open to the mortgagor to redeem the mortgage at any time that is to say even within a very short time and if that be so, would a tenant cultivating the lands under a lease, who has obliged his lessor by advancing monies to him to tide over his financial difficulties give up his rights as a lessee no sooner redemption takes place? In our view, it does not stand to reason that he would do so. This S.A.285/1996. 15 circumstances coupled with a fact that the mortgage deed keeps alive the lessee's liability to pay rent during the currency of the mortgage clearly suggests that no implied surrender was intended by the parties."
17. It can be seen from a reading of the above decisions that those decisions were rendered on the facts and situation available in each case and none of the above decisions laid down any absolute principle that by the execution of the mortgage deed, the lease comes to an end and there is deemed to be an implied surrender or when there is an agreement for sale, the landlord-tenant relationship ceases to exist. It is true that in the decision reported in A.Arumugam Chettiyar v. Lokanayakamma (AIR 1997 SC 280) also it was held that on the facts of the case there is am implied surrender of the tenancy and thereafter the status of the person concerned was only that of a mortgagee. The said decision refers to the earlier decisions on the point. However, one needs to note that in the decision reported in Chandrakant Shankarrao S.A.285/1996. 16 Machale v. Parubai Bhairu Mohite ((2008) 6 SCC 745). The issue considered was whether on execution of a mortgage deed, there is a merger of a lease in the mortgage or whether the lease can survive on redemption. It was held as follows:
"We are concerned here with a converse case. The case as to whether the interest of a lessee merged with the interest of a mortgage would depend upon facts and circumstances of each case, as indicated in Gopalan Krishnankutty. There cannot be any hard-and-fast rule for arriving at only one decision as the decision thereupon will depend upon the terms of the document."
18. The issue was again considered in the decision reported in Gopalan Krishnankutty v. Kunjamma Pillai Sarojini Amma (AIR 1996 SC 1659) wherein an identical issue was considered. There the issue that arose for consideration was whether on execution of a mortgage deed by a landlord in favour of the tenant, S.A.285/1996. 17 whether the lease will continue to survive or not. The question was whether that can be treated to be an express or implied surrender of lease. After referring to various decisions, it was held as follows:
"The High Court, in the present case, proceeded on the erroneous assumption in law that surrender of the lease by the lessee (defendant) must be implied from the fact of execution of the usufructuary mortgage in his favour by the lessor (plaintiff). As indicated, this is an erroneous assumption in law. This question has to be decided on the contents of the deed since there is no other evidence of surrender of the lease by the defendant on execution of the mortgage. We find nothing in the mortgage deed (Annexure A-1) dated 18th July, 1974 read with the release deed of the same date to prove either an express on an implied surrender of the lease by the defendant in favour of the plaintiff on execution of the mortgage deed. Since there is no automatic merger of the interest of a lessee with that of a mortgagee when the same person is the lessee as well as the mortgagee, in absence of proof of surrender of the lease by the defendant, S.A.285/1996. 18 on redemption of the mortgage, the plaintiff is not entitled automatically to recover possession of the leased premises. The defendant's right to continue in possession as a lessee, therefore, continues to subsist."
19. The issue was again considered in the decision reported in Cheriyan Sosamma v. Sundaressan Pillai Saraswathy Amma (AIR 1999 SC 947) it was held as follows:
"The question whether upon redemption of usufructuary mortgage a tenant-mortgagee was required to deliver actual or physical possession of the mortgage property to the lessor-mortgagor depends upon the intention of the parties at the time of the execution of the mortgage deed. There is no automatic merger of the interest of a lessee with that of a mortgagee when the same person is the lessee as well as the mortgagee, in the absence of proof of surrender of the lease. Unless there is merger of both rights in redemption of the mortgage, the plaintiff is not entitled to recover physical possession of the S.A.285/1996. 19 property. The right of lessee to continue in possession would survive after redemption.
Where a usufructuary mortgage was executed of the property which was already leased with the husband of the mortgagee and the husband and wife were living together, the lessee and mortgagee were the same persons but when the terms of mortgage deed shows that rights of lessee were expressly saved and lease was continued, on the redemption of mortgage leasehold rights of the lessee would survive as there is no surrender or implied surrender of the tenancy rights."
20. Learned counsel for the appellants placed considerable reliance on the decision reported in Sardar Govindrao Mahadik v. Devi Shai ((1982) 1 SCC 237) wherein the issue considered was whether on execution of an agreement for sale, any other relationship will survive. On the facts of the said case, it was held that it does not. Emphasize was laid by the learned counsel on paragraphs 10, 14, 23, 31, 39 and 41 of the decision. The decision was S.A.285/1996. 20 more concerned with the question regarding the application of Section 53A to the facts of the case.
21. It could thus be seen that there is no absolute rule that with the execution of a mortgage, lease arrangement which was till then in existence comes to an end. A reading of the above decisions will make it clear that each case depend upon the facts of that case or on the terms of the document that came up for consideration. Viewed from that angle, it will be useful to refer to Ext.A1 mortgage deed in the case on hand. After narrating the various clauses, it is seen referred to as follows:
".......
........."
22. It is quite evident that the lease arrangement was intended to survive for the simple reason that the rent to be paid by the tenant to the landlord was to be adjusted S.A.285/1996. 21 towards interest of the mortgage. If as a matter of fact the lease was not intended to survive or if the parties intend express or implied surrender of the lease, such a clause would not have been incorporated. It was this clause which had persuaded the court below to hold that the lease cannot either get merged nor is there an implied surrender by virtue of Ext.A1 document. The view taken by the court below seems to be fully justified.
23. Coming to the question as to whether there is an extinguishment of the agreement by virtue of Ext.B1, it has to be taken that the view taken by the courts below appears to be correct. One has to refer to Ext.B1 in this regard. It is seen referred to as follows:
"...
7000/- (
) 501/- ( )
(7501)
."
S.A.285/1996. 22
24. A reading of the above provision would show that the provisions of Section 60 of the Transfer of Property Act clearly stands attracted and the mortgage stands redeemed. One has to note that the agreement for sale has been entered into long after the period fixed as per Ext.A1 agreement and a sum of Rs.7000/- mentioned in Ext.A1 agreement is adjusted towards the sale consideration and a sum of Rs.7500/- is received as advance by the vendors. It could not be said that after the execution of Ext.B1 document the mortgage survives. There is no error in the finding of the courts below in this regard.
25. What now comes up for consideration is whether the defendants are entitled to the protection of Section 53A of the Transfer of Property Act as found by the courts below.
26. It has to be said that there is some incongruity in the finding of the lower appellate court in this regard. The lower appellate court came to the conclusion that the S.A.285/1996. 23 lease survives and then also found that the defendants are entitled to the protection of Section 53A of the Transfer of Property Act. This finding creates a confusion in the sense it has become difficult to ascertain as to whether the possession of the defendants are as lessees or in furtherance of Ext.B1 agreement for sale. The finding regarding any one of them will entail different legal consequences.
27. Both the courts below have found that the defendants were ready and willing to perform their part of the contract.
28. The case of the appellants is that the finding is erroneous in the sense that a reading of the evidence of D.W.1 would show that the defendants are not willing to perform their part of the contract.
29. One has to necessarily refer to Ext.B1 in this regard. In Ext.B1 what is stated is that the extent of property that is sought to be conveyed is 3 cents. It is not in dispute that on measurement the extent was found to be far S.A.285/1996. 24 less than what is mentioned in Ext.B1. However, the contention of the learned counsel for the appellants is that in the schedule it is mentioned that the property that is sought to be conveyed is in the possession and enjoyment of the mortgagee and that would show that what was intended to be conveyed was the extent of the property and the building therein in the possession of the mortgagee situate within the boundaries mentioned therein. According to learned counsel the mere fact that there is a difference in extent will not entitle the proposed vendee to contend for the position that he is bound to pay only the proportionate amount. There is no such condition in Ext.B1 agreement and therefore the reluctance on the part of the proposed vendee to execute the sale deed in terms of Ext.B1 as it now stands shows their unwillingness and unreadiness to perform their part of the contract.
30. Learned counsel appearing for the appellants relied on the decision reported in Jacobs (P) Ltd. v. Thomas Jacob (1994(2) K.L.T. 848) for the proposition that S.A.285/1996. 25 the readiness and willingness that is expected of a proposed vendee should be unconditional and absolute. In the said decision it was held as follows:
"Willingness to perform the roles ascribed to a party in a contract is primarily a mental disposition. However, such willingness in the context of S.53A of the T.P. Act must be absolute and unconditional. If willingness is studded with a condition, it is in fact no more than an offer and cannot be terms as willingness. As a right is created by the statute in favour of a transferee through S.53A, the transferee has to fulfil all the conditions for acquiring the right. In other words, what is contemplated is the complete performance or complete willingness and not performance in part or conditional willingness or even willingness in part."
31. In order to attract Section 53A of the Transfer of Property Act, the following conditions will have to be satisfied:
S.A.285/1996. 26
"In order to qualify for the protection conferred by the equitable doctrine of part performance as enacted in Section 53A, the following facts will have to be established:
(1) That the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;
(2) That the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract:
(3) That the transferee has done some act in furtherance of the contract; and (4) That the transferee has performed or is willing to perform his part of the contract.
There was no dispute that the aforementioned conditions have to be satisfied to make good the defence of part performance. The controversy is on their application to the facts of the case."
S.A.285/1996. 27
32. Before going into the question as to whether the ingredients of Section 53A are satisfied, one other aspect will have to be considered. It was very vehemently contended by the learned counsel for the appellants that before the execution of Ext. B1 document, even if there was a lease arrangement, that has come to an end and thereafter the possession is in pursuance of Section 53A assuming that the defendants are entitled to its protection.
33. It has already been noticed that the lower appellate court has found that the lease still subsists. It is by now well settled that unless it is shown that there is an implied or express surrender of the lease and the parties intend to alter the relationship of landlord-tenant to one of proposed vender and vendee, the lease will continue to exist or in other words there is no automatic cessation, expiry or surrender of lease on execution of an agreement for sale. This again is a matter to be determined with reference to the document that falls for consideration. One may refer to the decisions reported in D.S. Parvathamma S.A.285/1996. 28 v. A. Srinivasan ((2003) 4 SCC 705) and Hajira Umma v. Razak (1991(2) K.L.T. 700). In D.S. Parvathamma's case (supra) it was held as follows:
"When a person already in possession of the property in some other capacity enters into a contract to purchase the property, to confer the benefit of protecting possession under the plea of part-performance, his act effective from that day must be consistent with the contract alleged and also such as cannot be referred to the preceding title. Though referring to Section 91 of the Indian Trusts Act, the High Court in Bhagwandas Parsadilal case, AIR 1961 MP 237 had held that a subsequent purchaser of the property with notice of an existing contract affecting that property must hold the property for the benefit of the person in whose favour the prior agreement to sell has been executed to the extent it is necessary to give effect to that contract, but that does not mean that till a final decision has been reached the contract creates a right in the person in possession i.e. the tenant, to refuse to surrender possession of the premises even if such possession was obtained by him not in part S.A.285/1996. 29 performance of the contract but in his capacity as a tenant. Having entered into possession as a tenant and having continued to remain in possession in that capacity he cannot be heard to say that by reason of the agreement to sell his possession was no longer that of a tenant."
In Hajira Umma's case (supra) it was held as follows:
"The civil court has no jurisdiction to consider the question of eviction, so long as the defendant continued as a statutory tenant. It is also not possible to hold that the defendant waived her right by sating that she has been in possession of the building by virtue of Ext.B1 agreement. It is not correct to say that after the execution of Ext.B1 agreement the possession of the building by the defendant as a tenant transformed into possession as per Ext.B1 agreement. It is also clear that the plaintiff sent a notice to the defendant terminating tenancy and she also filed original petition under Act 2/65 for evicting the defendant. From these facts it is clear that the defendant after the termination of the tenancy was continuing as a statutory tenant enjoying all S.A.285/1996. 30 the protections of Act 2 of 1965. Act 2 of 1965 is a benevolent legislation intended to protect the interest of the tenant. The parties shall not be permitted to enter into any contract so as to defeat the provisions of Act 2 of 1965. If such a contract is entered into between the parties, the court will ignore such contract and decide the rights of the parties de hors the terms of such an agreement."
34. It has already been noticed that with the execution of Ext.B1 document, the mortgage stood extinguished and it has also been found that the lease arrangement cannot be deemed to have been impliedly or expressly surrendered nor is there a merger with the agreement. If that be so, the lease survives. On going through Ext.B1 document, there is nothing to show that the parties intended to put an end to lease agreement and thereafter the relationship is that of vendor-vendee alone. In other words, there is nothing to show that the status of the defendants changed from lessee to that of a proposed S.A.285/1996. 31 vendee and the subsequent possession was in furtherance of Ext.B1 agreement.
35. Apart from the above fact, it has also to be noticed that going by the evidence of D.W.1, he would say that he is unwilling to perform the contract as it now stands. It will be useful to refer to the deposition, which reads as follows:
".......
. Ext.B1-
. Ext.B1- .
Ext.B1-
? A. .
Ext.B1-
.
? A. . Ext.B1
?
. Ext.B1 -
? A.
S.A.285/1996. 32
92,000/-
."
36. It is well settled that when there is a conflict between the extent and boundary, the boundary will prevail. In the case on hand, what is intended to be conveyed was the property which was in the possession of the tenant and they therefore knew what was the subject matter of conveyance. Boundaries were also mentioned in Ext.B1 regarding the property, which is sought to be conveyed. True, on measurement it was found that the extent was less than what was mentioned in Ext.B1 document. But since the subject matter was definite and ascertainable as on the date of agreement for sale, that is Ext.B1 document, the stand taken by D.W.1 in the written statement as well as at the time of evidence cannot be countenanced. At any rate, it would indicate that they were not ready and willing to perform the contract as it now stands. S.A.285/1996. 33
37. Further, two other factors stare at the face of the defendants in this regard. One is that they have not adduced any evidence to show that they have done anything in furtherance of the contract nor have they been successful in showing that their continuance in possession after Ext.B1 agreement was in pursuance of the said agreement. One may remember here that they were already in possession as lessees and after the execution of Ext.A1 mortgage their status as lessees survived. Therefore the possession can be treated as only that of a lessee. That relationship does not appear to have been come to an end by Ext.B1 agreement.
38. In the light of the above finding, it has become necessary to interfere with the judgments and decrees of the courts below. While confirming the dismissal of the suit by the courts below, it is necessary to observe that the status of the defendants in the suit property continued to be that of lessees and that the plaintiffs will have to take recourse to the provisions of Act 2 of 1965 to S.A.285/1996. 34 seek their eviction from the premises. However, the defendants are liable to pay the agreed rate of rent till they are evicted in accordance with law. The parties are at liberty to pursue any remedy which may be open to them with regard to Ext.B1 agreement.
The appeal is allowed to the above extent. There will be no order as to costs.
P. BHAVADASAN, JUDGE sb.