Anguri Devi vs Smt. Gulab Bai

Tej Shankar, J.

An interesting question of law has been raised in this second appeal which has arisen out of a suit for redemption.

The facts are not in dispute. Admittedly, the original defendant no. 3, Raghuwar Dayal, executed a mortgage in favour of Gulab Bai, predecessor-in-title of defendants nos. 1 and 2 on 20.5.1957 for Rs. 1,000/-with possession. Raghuwar Dayal continued in possession of the accommodation as a tenant. Rent was to be paid in lieu of interest. The property in question was auctioned on 27.11.1968 and the plaintiff purchased it. He obtained actual physical possession from Raghuwar Dayal in those procedings on 6.1.1969. Raghuwar Dayal thereafter moved an application in the same proceedings claiming that only mortgagor''s right had been auctioned and he was in possession as tenant. Hence without redemption actual possession could not be taken. He, therefore, prayed for restitution of possession which was allowed, vide order dated 13.3.69 and possession was restored to Raghuwar Dayal. The plaintiff thereafter sued for redemption. The learned trial Court passed a preliminary decree and decreed the suit on 5.2.1975 and directed the plaintiff to pay amount mentioned in the decree. The plaintiff preferred an appeal and prayed that the decree, passed by the trial Court be modified and the amount which was found due from him be directed to be paid. This appeal was allowed on 3.7.89 and the decree passed by the learned trial Court was modified to the extent mentioned in the operative part of the judgment. The present appeal has been preferred by the defendants as well as son of the original mortgagor Raghuwar Dayal.

The question of law raised in the appeal is that during the pendency of the appeal before the lower appellate Court Reghuwar Dayal admittedly died and he died on 16.10.82 and his legal representatives were not brought on record. Hence the decree is a nullity. The second point raised is that as Raghuwar Dayal was the tenant, hence he had certain interest in the property in question and no decree could be passed against him for possession as he had died. No other point has been raised.

The two substantial questions of law formulated at the time of admission of the appeal are as under :

(1) What would be the effect of death of Raghuwar Dayal in the Court below 7

(2) Whether in the facts and circumstances of the case a decree for possession against late Raghuwar Dayal could have been passed without showing availability of any ground for ejectment u/s 12 of the M.P. Accommodation Control Act, 1961 ?

The learned Counsel for the respondents contended that because the lower appellate Court had proceeded exparte against Raghuwar Dayal it was not necessary that his legal representatives be brought on record. It has also been contended that the interest of Raghuwar Dayal is transferred to the plaintiff as he purchased the mortgagor''s light in auction-sale which is not in dispute. Thus, it was not necessary, in any case, to implead any legal representatives of Raghuwar Dayal. The decree passed cannot, therefore, be said to be nullity or illegal. The suit could not abate.

I have already mentioned above the admitted facts. We have only to sec the effect of not bringing on record the legal representatives of the deceased Raghuwar Dayal. Admittedly he was mortgagor and his rights were purchased by the predecessor-in-title of Jiwanlal which clearly shows that Jiwanlal stepped into shoes of original mortgagor Rahuwar Dayal. He got the right of redemption which vested in Raghuwar Dayal and had certainly a right to get the property redeemed. The word ''legal representative'' has been defined in Section 2(11) of the C.P.C. It means, a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Thus, the interest of Raghuwar Dayal, the original mortgagors, is represented by the plaintiff himself who stepped into his shoes as mortgagor and it is not correct to contend that the interest of Raghuwar Dayal was not represented and it was necessary to bring his legal heirs on record. Legal heirs need not always be legal representatives. After auction sale the original defendant no. 3 was not left with any interest whatsoever in the said property as his rights interest stood transferred to the transferee. It may be mentioned here that it has been contended that inspite of the sale he had an interest in the property in as much he was in possession as tenant and as such his heirs should have been brought on record and in the absence of the heirs the appeal had abated. I shall show hereinafter while considering the second substantial question of law that no right could accrue to a tenant who was put in possession as a tenant by the mortgagee in possession. The tenancy stands automatically terminated on redemption. Thus, the argument that Raghuwar Dayal was left with any interest even after sale cannot be accepted. Here 1 may also mention that in Tulsibai (deceased, through L.Rs.) Vs. Bherulal, more or less, a similar question arose. In that case the facts were that the plaintiff brought a suit against S & B alleging that S has executed a bogus sale deed in favour of B without any right and title which had actually vested in plaintiff alone. The argument advanced was that prior sale deed on the strength of which S had claimed his own title and on the strength of which he had sold the house to B was a forged and fictitious document, without consideration. The plaintiff claimed relief of declaration that the two sale deeds were void and inoperative and for permanent injunction against defendants. During pendency of suit S died and his legal representatives were not brought on record. This Court held that S was not a necessary party and the suit as a whole did not abate and it could proceed against B alone. It was further held that after the sale in question in favour of B, S did not have any interest whatsoever in the suit property sold by him. I, therefore and that the death of Raghuwar Dayal and the fact that his heirs were not brought on reocrd has no effect and the decree passed by the learned appellate Court cannot be assailed on this ground. The appeal did not abate

The next argument is in respect of second substantial question of law referred to above. The contention is that Raghuwar Dayal was in possession as a tenant inspite of the fact that he was also a mortgagor. Under the sale his rights of mortgagor were transferred and the plaintiff got only those rights. The plaintiff cannot eject Raghuwar Dayal or his successor-in-title from the accommodation in dispute unless it is shown that any ground provided u/s 12 of the Accommodation Control Act is made out. This contention though apparently appears to be correct, yet if we consider it, we find that it has no legs to stand. The simple reason is that Raghuwar Dayal was himself a mortgagor and he mortgaged the property in dispute with possession and he himself took the accommodation on rent. The rent was payable in lieu of interest. In 1988 MPRCJ 61 (Supreme Court) Hanumant Kumar v. Mohanlal) two questions came up for consideration before the Apex Court;

(i) Whether a tenant of a mortgagee can continue as a tenant after redemption of the mortgage decree until he is evicted from the suit premises in accordance with the provisions of the Rajasthan Premises

(Control of Rent) & Eviction Act, 1950;

(ii) Whether the tenancy created in favour of the appellant can be deemed to be an act of ordinary prudence on the part of the mortgagee in managing the property falling within s.76 of the Transfer of Property Act.

The Apex Court ruled that the lease given by the mortgagee came to end after redemption of mortgage. Regarding the other question on the facts of that case it was held that there were findings of the Courts below that the premises were let out to the tenant the appellant the lease in question being held to be not an act of prudent management on the part of the mortgagee. I may mention here that in the case in hand the aforesaid second question has not been raised at all.

We are concerned, only with the first question. The Apex Court specifically apporoved the decision of the Rajasthan High Court to the effect that the tenant of the mortgagee in possession was not entitled to the protection under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, against the mortgagor after redemption of the mortgage. In the case in hand, the tenant is none else than the mortgagor himslef and hence this case is on better footing.

He is, therefore, not entitled to the protection of M.P. Accommodation Control Act. The argument that he cannot be evicted otherwise than on the grounds mentioned u/s 12 of the Accommodation Control Act cannot be accepted. I, therefore, repel it.

In view of what has been said above, both the substantial questions of law formulated are decided against the appellants. The appeal has thus no force and is accordingly dismissed with costs.