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1 - 10 of 18 (0.45 seconds)Rajasthan Rent Control Act, 2001
Shah Mathuradas Maganlal & Co vs Nagappa Shankarappa Malage & Ors on 23 March, 1976
28. The Deed per se shows that from the date of the Deed, parties intended to change the nature and character of possession of defendant-appellant over the property and he was conferred the right to enjoy the property as mortgagee in lieu of interest for a period of 5 years and thereafter in case the mortgage money was not paid within that period of five years as well as the right to sell the property mortgaged, to realise the principal sum and interest. When the possession with different relationship and different rights than that of a tenant was being given to the defendant and defendant accepted the same, it can be said to be a case of surrender under that Deed and in every case to be one of implied surrender of the tenancy rights under earlier lease. It cannot be a case of merger of leasehold rights in the mortgagee's rights, but here it is a case where in fact there has been surrender of possession and rights in property as a tenant by the defendant. It may be that there has been no actual delivery and re-delivery of possession, but that is not necessary, in view of law laid down by Their Lordships of the Supreme Court in the case of Shah Mathuradas Manganlal and Co. (supra), if a lessor accepts new lease that in itself is a surrender. Surrender can also be implied from the consent of parties and from such facts as the relinquishment of possession by the lessee and taking over possession by the 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, when he accepted the mortgage and Mortgage (Usufructuary Mortgage) Deed was executed in 1962.
Section 105 in The Transfer Of Property Act, 1882 [Entire Act]
Section 111 in The Transfer Of Property Act, 1882 [Entire Act]
Section 10 in The Code of Civil Procedure, 1908 [Entire Act]
Section 11 in The Code of Civil Procedure, 1908 [Entire Act]
Lachman Das And Ors. vs Heera Lal on 11 November, 1965
In the case of Lachman Das and Ors. v. Heera Lal, the Division
Bench of the Allahabad High Court considered the question of
application of Doctrine of Merger enunciated in Section 111(d) of the
Transfer of Property Act and expressed the view that Section 111(d)
cannot be made applicable where the lessee becomes a usufructuary
mortgagee of the demised property. In paragraph-9, Their Lordships
observed:-