Ved Parkash vs Harbans Lal

Pritpal Singh, J.—Ved Parkash Defendant has filed this appeal against the judgment and decree dated December 16, 1973 of the District Judge Hoshiarpur, by which his first appeal was dismissed and the decision of the trial Court was affirmed.

There is no dispute that the Plaintiff Respondent Herbars Lal mortgaged the house in dispute for Rs. 1,400/- in favour of the Defendant-appellant Ved Parkash. A suit for redemption of the mortgage was filed by Harbans Lal and a preliminary decree was passed by the trial Court for redemption of the house on payment of the mortgage amount of Rs. 1,400/- as well as sum of Rs. 1,200/- spent by the mortgagee on making improvements in the house. This decision was affirmed by the lower appellate Court.

The contention of the Defendant-appellant is that although the Plaintiff is entitled to redeem the mortgage but he cannot got actual possession of the house because before the creation of the mortgage the Appellant was occupying the house as a tenant and so by redemption of the mortgage his right as tenant would be revived. This contention was repelled by the lower appellate Court on the ground that though it is admitted between the parties that the Appellant was in possession of the house as tenant before he took this property on mortgage, but the terms of the mortgage imply that he had relinquished his lessee rights when the mortgage was effected in his favour. It was consequently found that by redemption of mortgage his tenancy rights would not be revived as he had surrendered these rights at the time of creation of the mortgage.

In the mortgage deed there is no mention of the Appellant''s lessee rights. On the contrary it is mentioned therein that possession was delivered to the Appellant as a mortgagee in the wake of the transaction of mortgage There is also a recital in the deed that it would be the duty of the mortgagor to effect repairs in the mortgaged property. Thus, recitals in the mortgage deed indicate that there was surrender of tenancy, and the Appellant was only a mortgagee. Had it not been so it would have been mentioned in the deed that the Appellant had been delivered possession of the house as a mortgages. It is held by the Supreme Court in Shah Mathuradas Maganlal and Co. Vs. Nagappa Shankarappa Malage and Others, that no particular form of words in the mortgage deed is essential to make a valid surrender of a tenancy rights. The surrender may be oral. The following observations in this judgment are extremely relevant on the point of 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 lessor. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, hut some-thing amounting to a virtual taking of possession. Whether this has occurred is a question of fact.

In the instant case the recital in the mortgage deed that possession was delivered to the Appellant as mortgagee implies the Appellant''s relinquishment of possession as a tenant and taking over possession as a mortgagee. There is, therefore, no legal infirmity in the construction put upon the mortgage deed by the lower appellate Court in coming to the conclusion that there was surrender of tenancy on the part of the Appellant when he took the house in dispute on mortgage and thereafter his possesion was only as a mortgagee. As held by the Supreme Court in the aforesaid judgment the fact whether there was a surrender of tenancy rights is a question of fact. Evidently, therefore, the finding of fact in this respect given by the lower appellate Court cannot be questioned in second appeal.

The learned Appellant''s counsel placed reliance on Jagan Nath Piare Lal Vs. Mittar Sain and Others, . In this judgment a Full Bench of this Court held that a tenant of a mortgagor after the mortgage, necessarily attorns to the morgagee and thereby becomes a tenant of the mortgagee, unless his tenancy has been put an end to by the mortgagor at the time of effecting the mortgage and so on the re-demotion of the mortgage, he again is relegated to the position of a tenant of the mortgagor. It is manifest that this judgment has no relevancy to the present case.

The Learned Counsel also tried to draw support from the judgment of the Supreme Court in Sachalmal Parasram Vs. Ratnabai and Others, . This judgment is equally in applicable to the facts of this case The ratio of this judgment is that the tenancy created by the mortgagee in possession does not survive the termination of the mortgagee''s interest. In other words the termination of the mortgagee''s interest terminates the relationship of landlord and tenant. One is at a loss to understand as to how this proposition would help the Appellant''s case.

For these reasons the judgment of the lower appellate Court is affirmed and the instant appeal is dismissed with costs.