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Cheekati Kuriminaidu and ors. Vs. Karri Padmanabham Bhukta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 900 of 1962
Judge
Reported inAIR1964AP539
ActsTransfer of Property Act, 1882 - Sections 111
AppellantCheekati Kuriminaidu and ors.
RespondentKarri Padmanabham Bhukta and ors.
Appellant AdvocateA. Gangadhara Rao, ;M. Sita Rama Raju and ;K.S.S. Narayana Raju, Advs.
Respondent AdvocateK. Raghavarao and ;K. Hanumantharao, Advs. and ;3rd Govt. Pleader
DispositionPetition allowed
Excerpt:
property - mortgage - section 111 (f) of transfer of property act, 1882 - lands leased out by owner - lands in possession with lessees for 15 years - owner executed a mortgage deed in favour of lessees under lease deed - whether lease to continue along with mortgage - usufructuary mortgage deed mentioning a stipulated rent - provision for payment of rent and for adjustment of interest due on mortgage amount out of rent - no mention of sale of mortgaged property to realize payment - taking of mortgages by lessees did not amount to implied surrender of leases - held, lease can co-exist with mortgages. - - 65/- and so cercefartoe you can enjoy the said lands and be appropriating rs. 97.8.0 and so henceforth you can cullivate and enjoy all cultivated and cultivable lands and be.....anakthanarayana ayyar, j.1. ten petitioners have filed this writ petition praying that this court may call for the records relating to the order of the sub-collector, parvatipuram in i. a. c. r. a. 10 of 1962 dated 9-7-1952 and issue 3 writ of certiorari or any other appropriate writ quashing that order.2. the relevant facts are as follows: certain lands in the village of neelakanthapurarn wero leased out by the owners in favour of certain lessees under cowle (ex. d.5) dated 5-2-1906 for a period of 3 years. 'it provided for a rent of rs. 51-4-0 per year. though the period of lease under it expired in 1909, beyond doubt or dispute, the tenants continued to be in possession as lessees holding over and cultivated the lands up to date. on 10-5-1927 the owners of the lands executed a mortgage.....
Judgment:

Anakthanarayana Ayyar, J.

1. Ten petitioners have filed this writ petition praying that this Court may call for the records relating to the order of the Sub-Collector, Parvatipuram in I. A. C. R. A. 10 of 1962 dated 9-7-1952 and issue 3 writ of certiorari or any other appropriate writ quashing that order.

2. The relevant facts are as follows: Certain lands in the village of Neelakanthapurarn wero leased out by the owners in favour of certain lessees under cowle (Ex. D.5) dated 5-2-1906 for a period of 3 years. 'It provided for a rent of RS. 51-4-0 per year. Though the period of lease under it expired in 1909, beyond doubt or dispute, the tenants continued to be in possession as lessees holding over and cultivated the lands up to date. On 10-5-1927 the owners of the lands executed a mortgage deed (Ex, P-5) in favour of the persons who were then lessees. It provided as follows :-

'I have to-day borrowed from you Rs. 666.10.8 repayable with an annual interest of Rs. 40/- thereon and as A security for the due discharge of the above debt I have given you possession of our lands situate in Neelakantapuram alias Chinnayavaiase.....which have been inyour occupation and cultivation since a very long time..... Possession of the above lands is givento you for the stipulated annual rent of Rs. 65/- and so cercefartoe you can enjoy the said lands and be appropriating Rs. 40/- from out of the above stipulated ren[ yourself every year towards the interest due to you on this mortgage debt and from out of the balance be paying Rs. 5/-every year to the Government towards the quit rent and kattubadi on these lands and be paying the remaining Rs. 19/- to us by the 15th of Kerteekam every year and obtain receipts from us.

After thus enjoying for a period of 15 years from this 'Prabha' to 30th of Phalguna of 'Vrusha' if your principal amount of Rs. 1000/- is paid by 30th of Phalguna in any year, you give back this deed, quit rent etc., receipts and the lands to us.....'

The persons, who claim to be interested in these lands as mortgagees and lessees or their successors-in-interest, are petitioners 7 to 10.

2-a. Similarly the owner leased out cerain other lands by lease deed [Ex. D-1) for a period of 3 years for lands situate in the same village. Subsequently, the owner executed a mortgage deed (Ex. D-2) on 13-5-1927 in favour of the persons who were holding the lease for a sum of Rs. 1000/. This document contained recitals as follows :-

'I have today borrowed Rs. 1000/- (Rupees one thou-sand) from you repayable with an annual interest of Rs. 60/-thereon and as a security far the due discharge of the above debt I have given you possession of the lands called Chavaka Polam covered by Inam T. D. No. 394, situate in Neelakantapuram ..... which have been inyour occupation and cultivation since a very long time ana .....possession of the above said lands wasgiven for the stipulated annual rent of Rs. 97.8.0 and so henceforth you can cullivate and enjoy all cultivated and cultivable lands and be appropriating every year Rs. 60/-yourself from out of the above stipulated rent towards the interest payable to you on this mortgage amount by the 15th of Pushya every year, and from out of the balance, be paying Rs. 9 every year towards the quit rent and kattu-badi payable to the Govt. during the month of Sravana each year obtaining receipts in my name and be paying us the balance of Rs. 28.8.0 by the 15th of Karteekam every year and obtain receipts from us.

After thus enjoying for a period of 15 years starting from the year Prabha to 30th of Phalguna of the year Vrusha, if the principal amount of Rs. 1000/- is paid to you by 30th of Phalguna of any year, you must give back this deed, quit-rent etc. receipts and lands to us.'

Petitioners 1 to 6 in the writ petition are the persons who are either lessees or mortgagees or their successors-in-interest. Similarly, the owner of the land in the same village executed lease deed (Ex. D-3) on 14-2-1932 for a period of three years in favour of certain lessees for an annual rent of Rs. 36A. The owner later on executed a mortgage deed (Ex. D-4) in favour of the lessees under lease deed (Ex. D-3). The mortgage (Ex, D-4) is dated 25-4-1933 for a sum of Rs. 300/-. It runs as follows:-

'As a security for the due discharge of the amountstill due to you under a promissory note for Rs. 300/- dated14th February 1932 executed in your favour, we havestipulated that our lands called Dandasi Polam situate inNeelakantapuram, irrigated by Yarakanna Banda.....are given possession to ycu with stipulation that from out of our stipulated rent of Rs. 37/- payable on the above lands, you have to appropriate Rs. 36/- every year towards your interest on Rs. 300 and pay Rs. 1/- to the Government towards quit rent etc., payable for these lands.

After thus enjoying for a period of three years from 'Srimukha' to 'Uva', if your principal amount of Rs. 300/-is paid by 30th of Phalgunam of any year you have to give back this deed, quit rent etc., receipts and the lands to us.'

The lands concerned in these documents are inam lands in an inam village. Beyond doubt or dispute, the provi-sions of the Andhra Inams (Abolition and Conversion into Ryotwari) Act (Andhra Act XXXVII of 1956) are applicable to all these lands. It is also beyond doubt or dispute that the various petitioners are either lessees or their succes-sors-in-interest and also mortgagees or their successors-in-interest and that the respective petitioners have been in possession, all along, of the lands concerned in the respective leases.

The Inam Deputy Tahsildar held a suo motu enquiry under Section 4(1) of the Act in which Karri Padmanabham Bhukta inamdar was shown as petitioner. The latter is first respondent in this writ proceeding. There were fourteen respondents. They include either the present petitioners or their predecessors-in-interest. Respondents 1 to 3 and 14 in the proceedings before the Tahsildar are not partiesin this writ petition and they were concerned with lands with which we are not concerned in this writ proceeding. in the proceeding before the Inam Deputy Tahsildar, various contentions were raised on the basis of which he framed four points for decision. Only two points related to the present petitioners or their predecessors-in-interest namely, points 3 and 4 which are as follows:-

3. Whether respondents 4 to 9 are in occupation of C schedule lands and respondents 3, 6, 7 and 8 are in occupation of D schedule lands as mortgagees only or as tenants in spite of the mortgages?

4. Whether respondents 10 to 13 are in occupation of E schedule lands as mortgagees or as tenants by the data of Act 37 of 1956?

The Inam Deputy Tahsildar held as follows:-

'.....I am of the opinion that thenis no incompatibility between the tenancy and the mortgage so as to attract the doctrine of surrender and in the absence of surrender of tenancy, the tenancy continues and these respondents are admittedly in occupation of the schedule lands prior to and by the date of coming into force of Act 37 of 1956. I, therefore, hold that respon-dents 4 to 9 are entitled to pattas for 2/3rds of the C and D schedule lands and respondents 10 to 13 are en-litled to ryotwari patta for 2/3rds of E schedule lands.'

3. The inamdar filed appeal in I. A. C. R. A. No. 10/52 before the Sub-Collector, Parvatipuram. Two points were framed by him. Point No. 1 related to respondents 1 to 3 and 14 with whom we are not concerned in this writ proceeding. Point No. 2 was substantially the same as Point Nos. 3 and 4 before the Inam Deputy Tahsildar. That point was as follows :-

(2) Whether the fact that the remaining respondents became mortgagees subsequently implies that they are no longer tenants and are, therefore, not entitled to 2/3rd share of the pattas

4. Various rulings were cited by both sides before the Inam Deputy Tahsildar and the Sub-Coilictor. The latter observed that the learned Inam Deputy Tahsildar had merely mentioned the rulings in his order without discussing them. The learned Sub-Collector discussed the law as laid down by the rulings and held on Point No. 2 in favour of the inamdar as against respondents 4 to 9 alone and accordingly allowed the appeal against them. But, he directed both parties to bear their own costs. It is against that order that this writ petition has been filed.

5. The question which arises for consideration in this writ petition is the point which has been framed by the learned Sub-Collector in his order.

6. Shri A. Gangadhara Rao, the learned Counsel for the petitioners, has raised the following contentions:

(1) That the mortgages, Ex. D-2 and Ex. D-5 are not usufructuary mortgages.

(2) Section 111(f) of the Transfer of Property Act does not apply to the leases concerned in this case as they were leases for agricultural land.

(3) Even if Section 111(f) were to be applicable, there was no implied surrender of the leases under that provision o1 law.

7. Section 58(d) of the Transfer of Property Act as it originally stood (before amendment by Central Act XX of 1929) was as follows:-

'Where the mortgagor delivers possession of the mortgaged property to the mortgagee, and authorizes him io retain such possession until payment of the mortgage-money and to recaive the rents and profits accruing from the property and to appropriate them in lieu of interest, or in payment of the mortgage-mcney, or partly in lieu of interest and partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.'

This provision was amended by the Central Amending Act (Act XX of 1929) and the amended provision runs is follows :-

'Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mort-gage-money, and to recede the rents and proiits accruing from the properly or any part of such rents and profits end to appropriate the same in lieu of interest, or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.'

Ex. D-2 and Ex. P-5 were executed in 1927 that is before the Amending Act came into force. Each of these two mortgage deeds provides that the mortgagee was to pay only a portion of the rent and profits with the result that he could in effect receive the remaining portion of the rents and profits in lieu of interest. This is sufficient to make them 'usufructuary mortgages' under the defini-tion in force after the amendment of 1929 but was not sufficient to comply with the requirements of Section 56(d), as it stood before the amendment of 1929. Therefore each of Ex. D-2 and Ex, P-5 was not a usufructuary mortgage as that term was defined on the date on which the documents, Ex. D-2 and Ex. P-5 were executed. This contention is not made regarding the other mortgage (Ex. D-4) which was executed after the amendment of 1929 came into force. The question as to whether Ex. D-2 and EX-P-5 could in law be called usufructuary mortgages by name does not affect the contents, substance and nature of the mortgages which are substantially similar in material particulars to the mortgage (Ex. D-4).

8. Contention Nos. 2 and 3 : Section 117 of the Transfer of Property Act tuns as follows:

'None of the provisions of this Chapter (Chapter V consisting of Sections including Section 111(f)) apply to leases for agricultural purposes, except in so far as the State Government may, by notification published in the Official Gazette, declare all or any of such provisions to be no applicable in the case of all or any of such lease, together with or subject to, those of the local law, if any, for the time being in force.

Such notification shall not take effect until the expiry of the six months from the date of its publication.' It is beyond doubt or dispute that no notification under Section 117 was issued in the State making any provisions of Chapter V applicable to agricultural leases.

9. In Umar Pulavar v.. Dawood Rowther, AIR 1947 Mad 68 it was held to the following effect : (Head Note)

'Section 111(f) as amended in 1929 embodies a principle of justice, equity and good conscience, and must be held to govern even agricultural leases.....'

10. Section 111(f) and (g) run as follows :-

'111. A lease of immovable property determines-

(f) by implied surrender;

(g) by forfeiture; that is to say..... (1) in case the lessee breaks an express conditionwhich provides that, on breach thereof the lessor may :enter; or (2) in case the lessee renounces his characteras such by setting up a title in a third person or by claim-ing title in himself; or (3) the lessee is adjudicated an in-solvent and the lease provides that the lessor may re-either on the happening of such event; and in any of theseCASES the lessor or his transferee gives notice in writingto the lessee of his intention to determine the lease;'

In Brahmayya v. Sundaramma, AIR 1948 Mad 275 (F5)the learned Judges of the Full Bench observed as follows(at page 279)

'Whilst that section (Section 106) does not apply to leases for agricultural purpose, by virtue of Section 117 of the Act nevertheless, it has been observed and laid down in a series of decisions of this Court that the rules in Section 106 and in the other sections [Sections 105 - 116) in Chap. V of the Act are founded upon reason and eauity; they are the principles of English Law and should be adopted as state-ment of the law in India applicable to agricultural leases.....'

11. In Namdeo v. Narmadabai, : [1953]4SCR1009 their Lordships of the Supreme Court observed as follows:

(at page 232)

'In our opinion, the provision as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease (Section 111(f) of the Transfer of Property Act) is not based on any principle of justice, equity or good conscience and cannot govern leases made prior to the coming into force of the Transfer cf Property Act, 1882 or to leases executed prior to 1-4-1930. The lights and obligations under those leases have to be determined according to the rules of law prevailing at the time and the only rule applicable seems to be that a tenant cannot by his unilateral act and by his own wrong determine the lease unless the lessor gives an indication by some unequivocal expression of intention on his part off taking advantage of the breach. On no principle of equity is a tenant entitled to a notice in writing telling him that the lease has been determined.....

Considerable reliance was placed by Mr. Daphthary on the decision of Chandrasekhara Aiyar, J. sitting singly in the case of AIR 1947 Mad 68 wherein the learned Judge said that Section 111(f) as amended in 1929 embodied a principle of justice, equity and good conscience and must be held to govern even agricultural leases..... Inour judgment, this case was wrongly decided and we are unable to support It.

Mr. Daphtary also placed reliance on certain observations contained in the Full Bench decision In AIR 1948 Mad 275 (FB). There it was said that although Section 105, T. P. Act does not apply to leases for agricultural purpose by virtue of Section 117 of the Act, nevertheless the rules in Section 106 and in the other sections (Sections 105 - 116) in Chap. V of the Act are founded upon reason and equity and they are the principles of English law and should be adopted as the statement of the law in India applicable also to agricultural leases. In our opinion, the above statement is again formulated in to a wide a language.'

Their Lordships proceeded to show that the provisions con-tained in Sections 107, 108(i), parts of Sees. 109, 110 and 111(f) contained mere rules of procedure which were rules of a technical nature and cannot he said to be based on any principles of equity. Their Lordships observed as follows: (at page 233)

'Parts of Sections 109, 110(i) contain mere rules of procedure or rules of a technical nature. These certainly cannot be said to be based on any principles of equity. In our judgment therefore, the statement in this decision that Sections 105 - 116 T. P. Act, an founded upon principles of reason and equity cannot be accepted either as correct or precise. Of course, to the extent that those sections of the Act give statutory re cognition to principles of justice, equity and good con science they are applicable also to cases not government by the Act.'

Their Lordships then observed that certain portions of Section (i) contained mere rules of procedure or rules of a technical nature but they did not decide the question as to whether the provisions contained in Section (i) in particular was a mere rule of procedure or was, on the other hand, based on any principle of justice, equity and good conscience.

12. It has to be decided whether the provision in Section (i) is cased on principle of justice, equity and good conscience.

13. In Venkayya V. Subbarao, AIR 1957 Andh-Pra 619, the question arose whether, where a later lease was executed regarding the same property, there was an implied surrender of an earlier lease of the same property under Section (i), Transfer of Property Act. Viswanatha Sastri, J. observed as follows: (at page 624)

'Implied surrender is, however, recognised and provided for by Section (i), Clause (f) of the Transfer of Property Act and the illustration thereto, which refers to a lessee accepting from his lessor a new lease of the property leased, to take effect during the continuance of an existing lease. The illustration is obviously not exhaustive of cases of implied surrender .....'

The learned Judge, after considering various decisions, held that there was an implied surrender.

14. In G. Valia Raja v. Tharappan Vareed, : AIR1961Ker293 , the question arose whether, when there cams into existence a later usufructuary mortgage, there was an implied surrender af an earlier lease under Section (i) of the Transfer of Property Act. The learned Judge relled on the decision In Veiu v. Lekshmi, AIR 1953 Trav-Co 584, wherein it was laid down

'the principle is that, whenever a certain relationship exists between two parties in respect of a subject-matter and a new relationship arises as regards the identical subject-matter, if the two sets of relationships cannot co-exist as being inconsistent and incompatible, that is to say, if the latter can come into effect only on the termi-ation of the earlier, that would be deemed to have been terminated in order to enable the latter to operate'.

The learned Judge formulated the question as follows : (at page 294)

'The question is, whether under Exts. A and B, the parties stand to each other in two inconsistent and in-compatible relationships or in other words, whether the rela-tionship between them after the date of Ext. B, was that mortgagor and mortgagee and not that of lesser and lessee.'

The learned Judge stated thus: (at page 295)

'..... the question has to be answered pri-marily on the terms of Ex. B, understood in the light of the surrounding circumstances ..... The contentsof Ex. B winch are important in this connection, are the description of the mortgaged properties in the schedule, the 'statement' in it 'that possession of the properties was handed over to the mortgagee on the date of the document', the direction to the mortgagee io enjoy the properties directly or indirectly, the 'reference' to 720 paras of paddy as the annual income from the properties 'in contradistinction with the description as rent in Ext. A,' together with the provision for accounting relating to it, by appropriating part of it towards interest on the mortgage amount and by paying the balance to the mortgagor, the provision in it for the release of the mortgaged propar-ties on payment of the mortgage amount, the repetition of the provision for the payment of tax amcunting to Rs. 48-8-1, as if Ex. B is self-contained, and 'the provision for the sale of the mortgaged properties as described.'

These indicate to my mind, that after the date o1 Ex. B, the only relationship that subsisted was, that of mortgagor and mortgagee.....'

Two important recitals on which the learned Judge based his conclusion are (a) that the document (mortgage) contained references to annual income from the properties in contradistinction with rent mentioned in the lease deed and (b) that there is a provision for sale of the mortgaged properties. In the mortgages with which we are concerned in the present case, there is no provision for sale of the property for realisation cf the mortgage money. There is, on the other hand, a clear provision in each of the three mortgages that the persons who took the mortgage were to make payments out of the stipulated rent. It not only means that rent was due from those persons but also that rent had been stipulated and agreed upon. This is a clear indication regarding each mortgage that, though the mortgage was executed, relationship of lessor and lessee existed at the same time and remained unaffected. It means that such relationship of lessor and lessee continued as it had existed up to ths date of the mortgage.

15. The learned Judge (Velu Pillai, J.) has himself observed in : AIR1961Ker293 , as follows : [at page 294) :

'It was contended for the defendants, that ths acceptance of a mortgage does not always nut an end to the earlier lease, and it was urged, that, though under Ext. A, the immovable properties were leased, under Ext. B, what was mortgaged was only the lessor's reversion, meaning not only his right to recover the leasehold, but also the right to the rent and all other rights which he may possess under the lease.

As an instance, Markose v. Godar Namboodiripad, 39 Cochin 400, may be referred to, where the provision in the mortgage document was to appropriate the interest on the mortgage amount from the 'Pattom' or 'rent' payable under the lease, the balance of the pattom alone, being payable in the mortgagor which was held to be a conclusive circumstance for coming to the conclusion, that the lease subsisted notwithstanding the mortgage.'

Thus, Velu Pillai, J. himself approved of that earlier decision in 39 Cochin 400, where it had been stated that the provision for payment of interest on mortgage moneyfrom out of rent was held to be a conclusive circumstance for holding that the lease subsisted. Such a provision-is actually found in the three mortgages which are concerned in this case. The learned Judge did not specifically consider the question as to whether Section (i) of the Transfer of Property Act was applicable to agricultural leases by way of being based on principles of justice, equity and good conscience. But, he proceeded to decide the case on the principle of implied surrender which he referred to as a principle whose applicability to leases cannot be doubted and which was founded in English law upon the rule of estoppel. He also stated that Section (i) of the Transfer of Property Act only codified that principle.

16. In Ramrao Govindrao v. Pahumal, : AIR1963MP296 , it was observed as follows: (at page 297)

'It is then argued that Section 101 of the Transfer of Property Act is exhaustive of the cases where there would be no merger, so that where a tenant accepts a mortgage, tenancy rights merge in the mortgagee lights. We cannot accept this to be the negative aspect of Section 101 of the Transfer of Property Act.

However, it seems clear to us that the relationship, of landlord and tenant came to an end when the usufructuary mortgage was effected. It is stated in the mortgage deed tnat the mortgagor is in possession and occupation of the house (Qabiz wa Mutasarrif), that he is delivering possession to the mortgagee, that the mortgage is possessory (Rahabil-Qabz), that the mortgagee will not be entitled to any interest nor will Ihe mortgagor be entitled to rent, and that on redemption only the principal amount of Rs, 1000/- will be repaid by the mortgagor to the mortgagee. It is, therefore, clearly a pure usufructuary mortgage.'

The learned Judges approved of the decision in AIR 1951 Kerala 293.

17. In S. A. No. 270 of 1962, Kinta Avutaram v. Vsrada Eangara Raju, Unreported judgment of this Court, DA. 19-6-1963 (A. P.), which came up for decision before cur learned brother, Chandrasehhara Sastry, J. the relevant facts were as follows: There was a lease of building hot agricultural land) and subsequent usufructuary mortgage of the same property in favour of the lessee. The concerned recitals were :

'So your shall adjust the monthly rent of the terraced shop in our possession by the 20th day of every month towards the monthly interest due under this document without reference to me and also pay to me by the 20th of every month Rs. 15/-. In this manner, you can make use etc. of the said shop in lieu of interest for three years. Thereafter, if at any time I intend to get the house released, I shall inform you three months in advance and pay you the principal sum of Rs. 6,000/- in one instalment.'

The learned Judge observed in his judgment dated 19-6-1963 that, in that document cf usufructuary mortgage, it was not mentioned as to v.'hat the agreed rent of the shop was but he held, after discussing the relevant evidence, as follows :

'On a fair reading of the deed of possessory mortgage, it appears to me that the tenancy of defendants 1 and 2 with respect to the suit shop continued even during the pendency of the usufrirctuary mortgage. They had to pay rent and out of the rent, they had to pay each monthRs. 15/- to the mortgagor and adjust the balance towards the interest payable on the principal amount secured by the mortgage. I am of the view that, as and when the mortgage is redeemed, the tenancy continues. From that time onwards the defendants 1 and 2 would have to pay the entire rent to the mortgagor or the transferee from him, the plaintiff ..... Therefore, I am unableto accept the contention of Mr. Dikshitulu that on the execution of the possessory mortgage deed, Ex. B-1 the parties themselves put an end to the tenancy.'

It will be observed that our learned brother also strongly relied for his conclusion and finding on the fact that the usufructuary mortgage provided that the mortgagee had to pay rent and that, from out of the rent, a portion had to be adjusted towards interest and another portion had lo be paid to the mortgagor.

18. The question whether the tenancy continues after execution of a mortgage depends upon the question whether it can co-exist with usufructuary mortgage and it has to be decided with reference to the provisions in the documents, particularly the usufructuary mortgage, in that respect, we agree with the view of the learned Judge in : AIR1961Ker293 . On the provisions contained in the documents of that case, the learned Judges in : AIR1961Ker293 and : AIR1963MP296 , came to their conclusions. We have got to decide on the basis of the contents gf the documents concerned in the present case. As indicated in : AIR1961Ker293 , the mention of a stipulated rent under a mortgage deed and provision for payment of such rent and for adjustment of interest due on the mortgage amount from out of such rent is a very strong feature. Such feature is contained in all these three documents. They do not contain any provision for sale of the mortgaged property for payment of the amount such as contained in the usufructuary mort-page concerned in : AIR1961Ker293 .

19. Shri Raghavarao for the respondents relies on certain recitals in these documents to show that there was an implied surrender. He points out that in the document, there is mention that possession was delivered. This is not very conclusive because it is undisouted that the persons who took the mortgage were already in pos-session even up to the date of the mortgage. In the mortgage (Ex. D-2), the mortgagor mentions 'I have given you possession of the lands' but, in the same sentence, later he says about the lands as 'which have been in your occupation and cultivation since a very long time.' further below, it is mentioned 'possession of the above-said lands was given for the stipulated annual rent of Rs. 97-8-0'. Possession was held as tenant paying rent up to mortgage and possession was continued after mortgage also as a tenant paying rent. Sri Raghava Rao points out that there Is provision in these mortgages that, when the persons paid the principal amount, the mortgagee was bound to deliver possession not only of the mortgage deed as well as receipts for quit rents etc., but also the mortgaged land. This provision is not conclusive and does not prevail as against the recital that the persons, who took the land on the mortgage, had to pay stipulated rent.

20. We find as follows: Merely because Section (i) is contained In Chapter V of the Transfer of Property Act, it cannot be deemed to be based upon a principle of justice, equity and good conscience. It has to be decided whether that provision of Section (i) is In fact rested on principle of justice, equity and good conscience irrespec-tive and independent of the fact that Section (i) is contained in Chapter V of the Transfer of Property Act Considering the provision in Section (i) in that light, we find that it embodies a principle based on justice, equity and good conscience and applies to agricultural leases concerned in the present case. We find accordingly on the second contention.

21. We find that on the facts and circumstances of this case and, in particular, the recitals contained in the document of mortgages [Exs. D.2, D.4 and D.5) that the taking of those mortgages by the respective lessees did not amount to an implied surrender by them of their respective leases and that the leases were capable of co-existing and did in fact co-exist with the respective mortgages. The third contention of the learned advocate for the petitioner is acceptable and we agree with it,

22. In the result, we quash the order of the Revenue Divisional Officer and restore the order of the mam Deputy Tahsildar. The writ petition is accordingly allowed with costs. Advocate's fee Rs. 100/-.


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