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Purshottam Vs. Ramcharanlal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 14 of 1963
Judge
Reported inAIR1967MP237
ActsTransfer of Property Act, 1882 - Sections 76 and 111; Code of Civil Procedure (CPC) , 1908 - Sections 35 - Order 34, Rule 10
AppellantPurshottam
RespondentRamcharanlal and ors.
Appellant AdvocateM.L. Gupta, Adv.
Respondent AdvocateG.P. Patankar, Adv. for Respondent (Nos. 1, 3 and 4)
DispositionAppeals dismissed
Cases ReferredJ. and Sheocharan v. Singhal Bhaiyalal
Excerpt:
- - the original mortgagor, shyamlal, failed to pay the rent, with the result that harprashad, mortgagee, brought a civil suit, no. (hereinafter called the act). 3. the teamed additional district judge framed as many as six issues in the suit and came to the conclusion that though the plaintiff-respondents had failed to prove the tender of the mortgage amount of rs. the general rule is that a successfulparty is entitled to costs unless he is foundguilty of misconduct, negligence, or omission,or unless there is some other good cause fordenial of costs to him......and purshottam, appellant in the instant appeal, is one of them. the plaintiff-respondents filed suit for redemption of the property after giving proper notice, and defendant no. 1. harprashad, appellant, resisted it on the ground that no tender of the mortgage money was ever made to him and though the plaintiff-respondents are entitled to redemption on payment of the mortgage money and interest, they were not entitled to khas possession, purshottam, defendant no. 2, and one rajaram, defendant averred that they could not be evicted being the tenants of the mortgagee, except on any of the grounds provided in the madhya pradesh accommodation control act. (hereinafter called the act). 3. the teamed additional district judge framed as many as six issues in the suit and came to the.....
Judgment:

Surajbhan, J.

1. This appeal is by the defendant against whom a decree for his ejectment has been passed The mortgagee whose tenant he claimed to be has also filed an appeal (being F.A. 15 of 1963) against the decree for redemption But his appeal is confined only to the costs of the suit awarded against him. However, as both the appeals wise out of the same suit and judgment, the disposal of the instant appeal shall govern the disposal of both the appeals.

2. The plaintiff-respondents are the purchasers of equity of redemption from the heirs and legal representatives of the original mortgagor. Shyamlal Kachar, who had mortgaged the properly consisting of 2 1/2 shops, with Harprashad, appellant in the connected appeal, on four different mortgage deeds, and the total amount of the mortgage money was Rs. 10,500. The mortgages carried interest in lieu of rent. The original mortgagor, Shyamlal, failed to pay the rent, with the result that Harprashad, mortgagee, brought a civil suit, No. 84 of 1953, and in the execution of its decree, recovered possession of the mortgaged property. Harprashad. mortgagee, inducted two tenants, on monthly tenancy of Rs. 10 and Rs. 17 respectively, and Purshottam, appellant in the instant appeal, is one of them. The plaintiff-respondents filed suit for redemption of the property after giving proper notice, and defendant No. 1. Harprashad, appellant, resisted it on the ground that no tender of the mortgage money was ever made to him and though the plaintiff-respondents are entitled to redemption on payment of the mortgage money and interest, they were not entitled to khas possession, Purshottam, defendant No. 2, and one Rajaram, defendant averred that they could not be evicted being the tenants of the mortgagee, except on any of the grounds provided in the Madhya Pradesh Accommodation Control Act. (hereinafter called the Act).

3. The teamed Additional District Judge framed as many as six issues in the suit and came to the conclusion that though the plaintiff-respondents had failed to prove the tender of the mortgage amount of Rs. 10,500 on the dates as alleged in the plaint, yet they were entitled to a mortgage decree for redemption of the mortgaged property on the payment of the mortgage money and interest found due. He also held that the tenants of the mortgagee are liable to be ejected since their tenancies stood terminated with the redemption of the mortgage, and they could not take advantage of the Act. Accordingly, he passed a preliminary decree.

4. We heard Shri Motilal Gupta, the learned counsel for the appellants in both the appeals, and Shri Patankar, the learned counsel on behalf of the respondents.

5. We will first deal with appeal No. 14 of 1963. Shri Gupta, the learned counsel for the appellants, contended before us that even with the redemption of the mortgage, the tenancy of Purshottam, appellant, created by the mortgagee while acting in the manner required under Section 76(a) of the Transfer of Property Act, will not only not come to an end, but will also continue under the plaintiff-mortgagors, and he could be evicted only under the provisions of the Act.

6. Shri Patankar, the learned counsel for the respondents, on the other hand, argued that after the redemption of the mortgage,Purshottam does not continue to be a tenantof the mortgagor, nor does fee mortgagor remain his landlord, and therefore, tenancy notbeing subsisting after redemption, the appellantcannot seek protection of the Act.

7. In our opinion, the contention of the appellant is untenable; (a) firstly, since under the terms of the mortgage-deeds (Exhibits D-1 to D-4), the mortgagor was entitled to be placed in possession of the mortgaged property after he paid the money due under the mortgage-deeds, the mortgagee could not so deal with the said property as would either defeat that right of the mortgagor or put an impediment in his way to secure that right. In the face of the Rent legislations which came into force, it became all the more imprudent on the part of the mortgagee to engraft tenancy rights on the mortgaged property. Even in the absence of those legislations, tenancy rights created by the mortgagee either extending in duration beyond the period within which the mortgaged property could be redeemed or continuing after redemption were not countenanced as any prudent act of management under Section 76(a) of the Transfer of Property Act and were held to come to an end with the redemption. See Mahabir Gope v. Harbans Narain Singh, AIR 1952 SC 205 (206); Hariharprasad Singh v. Devnarayan Prasad, AIR 1956 SC 305 and Asaram v. Mt. Ramkal, AIR 1958 SC 183. (b) secondly, there being no privity of contract or estate arising after the redemption between the mortgagor and the persons inducted over the mortgaged property by the mortgagee, neither the mortgagor would become in law the landlord of such persons nor would such persons be his tenants within the meaning of either the Transfer of Property Act or the Madhya Pradesh Accommodation Control Act and attract the provisions of any of those Acts; and (c) thirdly, the provisions of the Madhya Pradesh Accommodation Control Act do not at all come into play for these reasons The Act governs the rights and liabilities both of the landlord as also of his tenants and its provisions come into play only when the suit is between the landlord and his tenant and the right set up therein, claiming ejectment of the tenant is liable to be examined and determined only after the tenancy is lawfully terminated prior to the date of such suit, It is by the decree of the Court, trying that suit, that such right of ejectment is granted, provided it is available under the relevant provisions of that Act. In the instant suit, claim of ejectment, both of the mortgagee as also of the persons claiming possession under him, is not to be examined and determined in the light of any of the provisions of the Madhya Pradesh Accommodation Control Act inasmuch as the suit is not at all a suit between a landlord and tenant and the claim with respect to possession arises with arid in terms and consequences of the decree for redemption; There is no occasion or cause which subsists to attract the provisions of the Madhya Pradesh Accommodation Control Act.

8. This Court also in the following cases have held that the contract of tenancy entered into by a mortgagee does not subsist after redemption of the mortgage and the tenant claiming possession thereunder cannot dispute fee rights of the mortgagor to claim vacant possession of the mortgaged property. See Alladadkhan Kallukhan v. Kazi Nasiruddin, 1961 Jab LJ 1094; Moolchand v. Mathuradas, S.A. No. 149 of 1961, D/- 31-12-1961 (MP-Gwalior) decided by Sharma, J. and Sheocharan v. Singhal Bhaiyalal, S.A. No. 473 of 1966, D/- 22-8-1966 (MP) (decided by Golvalker J.).

9. Therefore, in the light of the law laid down in the decisions referred to above, we hold that a tenant of the mortgagee in possession, cannot resist eviction by the mortgagor or redemption of the mortgaged property by relying on the M. P. Accommodation Control Act, and as such, this appeal by the appellant deserves to be rejected.

10. Now turning to the next appeal No. 15 of 1963, filed by Harprashad. Shri Gupta, the learned counsel has urged before us that the learned Judge, while arriving at the conclusion that the tender of the mortgage money was not proved by the respondents, should not have passed a decree with costs in favour of the plaintiff, and at the same time, he should not have refused to award costs to the defendant.

11. Shri Patankar, the learned counsel for the respondents, has on the other hand contended that the defendant No. 1 and other defendants, resisted the suit on such grounds which were not available to them, and therefore, the learned Judge was right in not awarding costs to the defendants, and as the plaintiff-respondents had to file a suit, he rightly allowed them the costs.

12. The contention of Shri Gupta has noForce. The general rule is that a successfulparty is entitled to costs unless he is foundguilty of misconduct, negligence, or omission,or unless there is some other good cause fordenial of costs to him. It is true that thelearned Judge came to the conclusion that theplaintiff-respondents had not proved the tender of the mortgage-money. But the plaintiffshad given a timely notice expressing his offerto redeem the mortgage. Further, when thematter was taken to Court, the defendant, bycontesting the claim of the plaintiffs with respect to possession, tried to deprive him of theuse of the properly the Court could not butaward costs of the suit to the plaintiffs Itcannot be urged that the discretion has notbeen exercised by the Judge properly. It maybe pointed out that the defendant mortgageegave mortgaged shops on rent, one to the brother of his son-in law and another to defendant No. 2, The learned Judge, though hehas not specifically mentioned the aforesaidreason, it must have weighed with him. Thushe was right in not awarding costs of the suitto the defendants. So this appeal also deservesto be rejected.

13. The result therefore is, that we dismiss both the appeals with costs, and maintain the judgment and decree passed by the lower Court. The appellant, in each of the two appeals, shall bear the costs of the respondents However, we fix one set of counsel's fee for both the appeals, according to schedule, if certified


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