Richards and Karamat Husain, JJ.
1. This was a suit in which the plaintiff asked for the gale of a certain property on foot of a mortgage, dated the 17th December 1878, or in the alternative for possession, of the mortgaged property. Both the courts below have dismissed the plaintiff's claim. On the 17th December 1878, a mortgage was made for five years with possession. The deed provided that at the end of the five years the mortgagor should be entitled to redeem the mortgaged property and it further contained a covenant by the mortgagor that he would repay the principal at the end of five years in a lump-sum. Shortly after the execution of the mortgage, that is to say, on the 5th of March 1879, the mortgagees made a lease to one of the mortgagors for a term of five years. It has been found by the court, below that the mortgagees sued for and obtained decrees for the payment of rent reserved by the lease, during the term of the lease; but that after the expiration of the term of the lease the mortgagees no longer sued for the rent and the title of the mortgagees as landlord was no longer recognized. It is quite clear that no rent was ever paid since the determination of the lease and there is no evidence that there was any new agreement entered into that the mortgagors should continue to hold on after the determination of the lease as tenants of the mortgagees. The plaintiff contended, first, that he was entitled to bring the property to sale; secondly, that the mortgagors had never ceased to be his tenants and that therefore he was net barred by limitation; and thirdly, that the defendants or persons through whom they claim had given, an acknowledgment within the meaning of Section 19 of Act XV of 1817. During the course of the arguments the point that an acknowledgment had been given had to be abandoned, and it is unnecessary for us to deal with this question any further. The only acknowledgment that could possibly be relied upon was given in the year 1899 and if the defendants' contention was right, the plaintiff's claim was already barred at the date of the alleged acknowledgment. We now deal with the plaintiff's contention that he must be regarded as a landlord suing his tenant for possession. Under article 139 of the second schedule of Act XV of 1877, a suit of this nature must be brought within twelve years from the date when the tenancy is determined. The lease determined in 1884 and the present suit was not instituted till the year 1904. The plaintiff, however, contends that on the determination of the lease the defendants became his tenants from year to year, according to the provisions of Section 116 of the Transfer of Property Act. That section no doubt provides that if the lessor after the determination of the lease accepts rent from the tenant or otherwise assents to his continuing in possession, a new tenancy will be presumed. In the present case there clearly was no acceptance of rent by the lessor, and save for the mere fact that the defendants or their representatives remained on in possession there is nothing to suggest that the mortgagee or his representatives ever assented to their continuing in possession. We have been referred to a case, Prem Suk v. Bhupia (1897) I.L.R. 2 All. 517. In that case a suit was brought by the plaintiffs alleging that a lease had been given by their predecessor to the predecessor of the defendant of a certain. house on condition that he should pay a certain rent and that if he failed to pay the rent then he should vacate the house. A Full Bench decided that tie mere fact that the tenant neglected to ay the rent would not confer on him a title adverse to his lessor. It is to he mentioned that in that case there was no fixed period as in the present case. That decision was given in 1879 before the passing of the. Transfer of Property Act. Section 111 of that Act expressly provides that a lease of immovable property determines by efflux of time limited thereby. We do not think that the case we have just now quoted applies in the present case.
2. There remains the question whether or not the plaintiff is entitled to a decree for the sale of the property. Section 67 of the Transfer of Property Act makes provision for the bringing of suits by mortgagees for the sale of the mortgaged property; but Clause (a) expressly provides that a usufructuary mortgagee cau under no circumstances institute a suit for foreclosure or sale. If therefore the mortgage in the present case was a usufructuary mortgage, it is quite clear that the plaintiff can have no remedy by way of sale. The mortgage on the face of it appeal to be a usufructuary mortgage. It is called a usufructary mortgage and it provides for the redemption of the property by repayment of the principal at the end of the five years. It is contended that it became a simple mortgage at the end of the term. We do not think that this contention is sound. If the mortgagees had remained in possession as they were entitled to do, the mortgagor, under the provisions of Section 62 of the Transfer of Property Act, could not have recovered possession even after the expiry of the terra until after he bad paid or tendered to the mortgagee the principal money or deposited the same in court. We think under the circumstances that the decree of the court below was correct. We dismiss the appeal with costs.