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iqrar Ahmed Vs. Hulkey - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSmall Cause Revn. No. 51 of 1956
Judge
Reported inAIR1958MP319
ActsCode of Civil Procedure (CPC) , 1908 - Order 34, Rule 14; Transfer of Property Act, 1882 - Sections 8, 52, 76 and 105; Madhya Bharat Interest Act, 1956
Appellantiqrar Ahmed
RespondentHulkey
Appellant AdvocateHamid Ali Shah, Adv.
Respondent AdvocateInamdar, Adv.
DispositionRevision allowed
Cases Referred(B) and Harilal Bhagwanji v. Shastri Hemshanker Umiya Shanker
Excerpt:
.....is liable to be set aside. - if what he had observed earlier is correctnamely, that no relationship of the landlord and the tenant is created between the parties, then i fail to understand how a suit for arrears of rent was maintainable. no reason has been assigned why it should fail to create tenancy......in favour of the mortgagee, a suit for the recovery of rent is maintainable, 7. regarding the second question, i find that the trial court has reduced the amount of rent because it has treated the amount of rent as interest on the mortgage and according to madhya bharat interest act of 1956 (act no.' 17 of 1956), in case of secured debts, interest should not exceed 6 per cent per annum, in the first place, the court is not deciding a mortgage-suit. secondly, the rent-note nowhere says that it is in lieu of interest. the defendant has produced the mortgage-deed, which is ex. d. 1, in which it is said that the rent collected shall be appropriated towards the mortgage-debt. this does not mean that the sum of rs. 8/-which is claimed as rent is interest on the mortgage-debt. in this view.....
Judgment:
ORDER

A.H. Khan, J.

1. This revision arises out o a Small Cause Suit. The plaintiff brought a suit for the recovery of Rs. 208/10/6 as arrears of rent on the basis, of a rent-note executed by the defendant on 19-11-54 and exhibited as Ex. P. .1.

2. It appears that the house, about the rent of which this suit was filed, belonged to the defendant., who had mortgaged it to the plaintiff and thereafter taken a lease of the same from the plaintiff. The suit was resisted on the ground that since it is a claim arising out of a mortgage-deed and the rent is by way of interest on the mortgage, therefore the Small Cause Court had no jurisdiction. This contention was rejected by the trial Court. The Court instead of passing a decree for the rent claimed, calculated interest on the mortgaged-money at 6 per cent, and decreed the suit for a sum of Rs. 46-2-6 only. Against this decision, the plaintiff has filed this revision.

2. Two questions arise for consideration; One, whether the plaintiff can bring a suit on the rentnote in the Court of Small Cause Judge?

Two, whether the Court could reduce the amount of rent in the manner in which it has done?

3. With regard to the first question, the learned counsel for the opposite party was unable to show any authority on the point and the three cases, he has cited Nanekeshwar Prasad v. Nand Gopal Ram, AIR 1943 Pat 282 (A); Ram Narain Pasi v. Sukhi-Tiwari, AIR 1957 Pat 24 (B) and Harilal Bhagwanji v. Shastri Hemshanker Umiya Shanker, AIR 1958 Bom 8 (C), do not discuss the point at all. His contention however is that because the rent-note was executed in lieu of interest on the mortgage, therefore the claim for arrears of rent is in fact a claim arising out of a mortgage. This argument is contrary to the cases cited above, because in AIR 1958 Bom 8 (C), it has been said that a decree for rent on the footing that it really represented interest payable by the defendant can be given. Similarly AIR 1943 Pat-282 (A), does not say that such no suit cannot be filed In fact AIR 1943 Pat 282 (A) is wholly irrelevant because what is considered in it is the effect of Order 34, Rule 14, C. P. Code, which is quite a different matter.

4. In AIR 1957 Pat 24 (B), Prasad J. has taken the view that where mortgage and Kirayanama form part of one transaction, the mortgagor cannot be described as a tenant and as such no relationship of landlord and tenant is created thereby. But with great respect, I must point out that in spite of this,. Prasad J. later on in the very judgment has held that the mortgagee was entitled to sue for the arrears of his rent. If what he had observed earlier is correctnamely, that no relationship of the landlord and the tenant is created between the parties, then I fail to understand how a suit for arrears of rent was maintainable. I have no doubt that the dictum of Prasad J. requires re-consideration.

5. Considering the case on merits, I do not see any reason why document Ex. P. 1 does not create the relationship of a landlord and a tenant. The elementary rule of interpretation is that a document should be construed according to its plain words and that the words must be interpreted in their natural and ordinary sense. If a person has created a usufructuary mortgage, then it means that he has given possession of the property to the mortgagee. In the circumstances the mortgagee can give a lease of the property either to the mortgagor or to any third person for the matter of that. And when a mortgagee give a lease either to third person or to the mortgagor, it is certainly, a new relation that has been created.

Without prejudice to their former relationship of a mortgagor and a mortgagee, a new relation was also created by the lease. If the lease fails to create the relation of a landlord and a tenant, then the rent-note is a mere scrap of paper, having no value. No reason has been assigned why it should fail to create tenancy. Let vis further consider the position. If the mortgagee lets out the house to a third person, then admittedly a tenancy is created. But if the house is let out to the mortgagor, the lease which in the case of third person was effective, becomes ineffective. It would, not be logical to hold so.

6. Some confusion is sought to be introduced by referring to Order 34, Rule 14 of the Civil Procedure Code. But it does not bar a suit. It prohibits the bringing of the mortgaged property to sale in execution of a decree based on a claim arising under the mortgage. Because of the bar of Order 34, Rule 14, Civil Procedure Code, the mortgagee-landlord may not succeed in having the property put up for sale, but he can certainly seek satisfaction of the decree from the person and other property of the mortgagor-tenant. In the light of the above discussion I hold that on the basis of a rent-note executed by the mortgagor in favour of the mortgagee, a suit for the recovery of rent is maintainable,

7. Regarding the second question, I find that the trial Court has reduced the amount of rent because it has treated the amount of rent as interest on the mortgage and according to Madhya Bharat Interest Act of 1956 (Act No.' 17 of 1956), in case of secured debts, interest should not exceed 6 per cent per annum, in the first place, the Court is not deciding a mortgage-suit. Secondly, the rent-note nowhere says that it is in lieu of interest. The defendant has produced the mortgage-deed, which is Ex. D. 1, in which it is said that the rent collected shall be appropriated towards the mortgage-debt. This does not mean that the sum of Rs. 8/-which is claimed as rent is interest on the mortgage-debt. In this view of the matter, this case does not attract the application of the Madhya Bharat Interest Act referred to above.

8. For reasons stated above (he revision is allowed and the claim of the plaintiff is decreed withcosts throughout.


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