Aladad Khan Kalukhan vs Kazi Nasaruddin

H.R. Krishnan, J.—This is an application in revision by the occupant of a house mortgaged by the opposite party claiming to be a lessee from the mortgagee which he took on a monthly basis, is liable to ejectment only in accordance with the Accommodation Control Act, 1955. After redeeming the mortgage, the opposite party (mortgagor) took out a writ for actual physical possession by removing the mortgagee or anybody else claiming through him on the premises. At this stage, the present applicant appeared before the Court, and describing himself to be the tenant inducted in due course of management by the mortgagee, prayed that the mortgagor should be given only symbolic possession and he should be allowed to continue as a tenant subject to his paying the rent as a tenant on a monthly basis. He urged that he could not be objected in the execution of the redemption decree though it was open to the mortgagor to bring a suit under the Accommodation Control Act; he asserts in effect that a lease granted by the mortgagor on a house was as good as a lease by the mortgagor himself, and the lessee was entitled to get all the benefits given by statute.

The questions for decision are, firstly, whether the applicant can at all come up in revision and further, whether the act of the mortgagee in thus creating a tenancy ostensibily from month to month comes u/s 76 (a) or under sub-section (e); whether in this regard any distinction can be made between leases on houses and those on agricultural property such as have been the subject matter of the judicial decisions to be referred to in time.

That a lessee can get no more right-both in extent and in time than what the lessor himself has, is almost a trite proposition. This is expressly mentioned in Section 111 of the Transfer of Property Act-

111.-A lease of immovable property determines......

(C) where the interest of the lessor In the property terminates on, or his power to dispose of the same extends only to, the happening of any event-by the happening of such event.

If, by the redemption of the mortgage the mortgagee''s interest in the property has terminated, any lease given by him without the express authority or acquiescence of the mortgagor determines automatically: in otherwords on redemption, the mortgagee has to return the property in exactly the same condition as fee took it. He should not also commit any act which is destructive or permanently injurious to the property the word "injury" used here to signify reduction in its value and utility, which may not be necessarily a physical diminution or spoilation, and includes the placing of a burden which patently reduces the value and utility of the property to the mortgagor.

In this regard, the argument of the applicant is that the mortgagee has not created any permanent or a long term tenancy but has only given it on rent from month to month. It is by the operation of statute that the tenant has got a right to stay on subject to paying rent until he is objected by a suit in accordance with the Accommodation Control Act. Statute given this right; so it cannot be urged that the mortgagee has done any injury to the property. On the contrary, he should be deemed to have managed the property as a person of ordinary prudence managing his own property in the manner provided in Section 76 (a) of the Transfer of Property Act. In this connection, three rulings of the Supreme Court and in addition a Hyderabad ruling have been cited by the decree-holder-opposite party, while the applicant bases his case on a ruling of the Allahabad High Court.

In Mahabir Gope and Others Vs. Harbans Narain Singh and Others, , it was held that the mortgagee could not give the lease which was one extending beyond the period of the mortgage. The property was agricultural land but there is nothing in the judgment to indicate that another view would have been taken if it had been a house, and if the lease had been for a shorter period, still burdening the mortgagor with the obligation of brining a suit before the actual physical possession. Any doubt in this regard is cleared by the later Supreme Court ruling reported in Harihar Prasad Singh vs. Deonarain Prasad ( AIR 1956 SC 305). Here also, the property was agricultural land but the principles laid down in this judgment are of a general application.

A person cannot confer on another, any right higher than what he himself possesses and, therefore, a lease created by a usufructuary mortgagee would normally terminate on the redemption of the mortgage. Section 76 (a) enacts an exception to this rule. If the lease is one which could have been made by the owner in the course of prudent management, it would be binding on the mortgagors, notwithstanding that the mortgage has been redeemed. Even in such a case, the operation of the lease cannot extend beyond the period for which it was granted.

In that case, the Supreme Court has held that the agricultural lease can endure till the end of the agricultural year during the course of which the mortgage was redeemed, in other words, it can endure till the completion of the term of the particular grant or removal of the tenancy made while the mortgage was still in force. On the same principle, a month to month tenancy given by the mortgagee white in possession, can operate till the end of the tenancy month in course of which the mortgage was redeemed and not, beyond it. In Asa Ram and Another Vs. Mst. Ram Kali and Another, , the mortgagee bad created a lease over home-farm lands. Having regard to the special rights that the tenancy laws all over India have recognised in the owner in respect, of such lands, the act of the mortgagee which puts these rights in peril could not be regarded as that of a prudent owner and would require exceptional ground, to justify it. House property is quite similar; in the present case, there are no exceptional grounds.

The argument on behalf of the applicant is that the principles laid down by the Supreme Court will not apply to the lease of a house. Besides, he has relied upon Hardei Vs. Wahid Khan and Another, . In that High Court, there had been some conflict in the past; but in this ruling it has held that the redemption of the mortgage does not automatically and ipso facto determine a monthly tenancy created by the mortgage in exercise of his powers of the management as a person of ordinary prudence. It can only be determined by the mortgagor exercising his option of putting an end to the tenancy. This is based presumably on a very general reading of a part of the Supreme Court judgment in 1952 which has been clarified by the later judgment of 1956 in the passage has been quoted above. The view taken also differs from the view taken earlier by the Allahabad High Court as Well as the High Courts of Calcutta, Madras and Bombay, all these rulings being mentioned in the Allahabad judgment itself. In view of the very general opinion to the contrary, I would respectfully disagree with the view contained in this Allahabad decision. A similar question also involving the lease of a house on a month to month basis by the mortgagee came up for consideration in Ammenuddin vs. Mohammad Kadar Ali ( AIR 1953 Hyd 129). From the Supreme Court judgment in 1952, the Hyderabad High Court has derived the following principle:-

The general rule is that a person cannot by transfer or otherwise, confer a better title on another than he himself has. A usufructuary mortgagee therefore cannot create an interest in the mortgaged property which will ensure beyond the termination of his interest as mortgagee. It follows that he may grant leases not extending beyond the period of a mortgage; any lease granted by him must come to an end at redemption. The interest of tenant of a mortgaged house therefore come to an end or redemption of the mortgage and the mortgagor is entitled to actual possession of the house in execution of his decree for redemption.

This view is in accordance with she judgments of the Supreme Court including the later one of 1956, and is also in line with general view of most of the High Courts. The mortgagee or the lessee cannot by giving lease technically for a short period, throw a burden on the mortgagor which he knows is the consequence of the law in force.

The decree-holder has urged that the lease form the mortgagee could not under any law approach the executing Court that possession should be given in a particular manner. If he could not, then the order refusing to acceed to his request would not be one that can be taken up in revision, being in fact no order at all in the eyes of law. It is, however unnecessary to go into this question as the application has to fail on merits. Nor is it necessary in this revision to go into the merits of the allegations that the introduction of the lessee was one in bad faith on the part of the mortgagee. Even if it is one in good faith still the lessee has to be removed.

In the result, the application in revision is dismissed with costs and pleaders fee payable to the decree-holder opposite party according to rules.