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Ram Udhar and ors. Vs. Hari Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 248 of 1957
Judge
Reported inAIR1958P& H140
ActsTransfer of Property Act, 1882 - Sections 58 and 105
AppellantRam Udhar and ors.
RespondentHari Chand and anr.
Appellant Advocate N.L. Wadhera, Adv.
Respondent Advocate C.L. Lakhanpal, Adv.
DispositionPetition dismissed
Cases ReferredAsa Ram v. Kishan Chand
Excerpt:
.....on the ground that the mortgagors had failed to pay the rent which was due from them. the rent controller came to the conclusion that the relationship of landlord and tenant existed between the parties, that the mortgagors had failed to pay rent for the period in dispute and that they were liable for eviction from the premises in question......and that the relationship of landlord and tenant did not come into existence between the mortgagee and mortgagor. 4. i must confess with great regret that i am unable to concur in this view. the mortgage was with possession and die mortgagees were entitled by virtue of their legal tide to immediate possession of the premises in question. they were at liberty to reside in the premises themselves or to create a tenancy in favour of the mortgagors or in favour of another person. they 'leased out the premises to the mortgagors and the latter became the tenants of the mortgagees for a tenant is one who occupies the premises of another in subordination to that other's title & with his assent express or implied. when a mortgagee with possession allows the mortgagor to remain in.....
Judgment:
ORDER

A.N. Bhandari, C.J.

1. This petition raises the question whether the relationship of landlord and tenant exists between the petitioner and the respondent.

2. Ram Udhar and two others are stated to be the owners of a. certain house situate in Ludhiana. On the 15th July 1944 the owners mortgaged the property with Hari Chand and Dharam Chand for a sum of Rs. 10,000/-. The mortgage was with possession. It was Stipulated that interest would run at the rate of annas eight per mensem but would increase to annas ten per mensem in case of default. On the same day the mortgagors executed a rent deed by virtue of which they agreed to pay rent at the rate of Rs. 600/- per annum to the mortgagees.

3. The mortgagors failed to pay the rent which was due from them and on the 3rd September 1953 they created a second mortgage more or less on the same terms as were incorporated in the first mortgage deed. On the same date that is on the 3rd September 1953, the mortgagors agreed to pay rent at the rate of Rs. 750/- per annum. On the 21st June 1955 the mortgagees applied for ejectment of the mortgagors on the ground that the mortgagors had failed to pay the rent which was due from them. The Rent Controller came to the conclusion that the relationship of landlord and tenant existed between the parties, that the mortgagors had failed to pay rent for the period in dispute and that they were liable for eviction from the premises in question. The order of the Rent Controller was upheld by the learned District Judge and the mortgagors have come to this Court in revision.

3a. Mr. Wadhera, who appears for the mort-gagors, invites my attention to Baijnath Prasad v. Jang Bahadur Singh, AIR 1955 Pat 357 (A) where a mortgagor took back a lease of the mortgaged properties by executing a kirayanama in favour of the mortgagee. It was held that the so-called rent payable under the kirayanama in fact represented the interest payable on the mortgage money and not rent for use and occupation, that the kirayanama was merely a device for regular payment of interest on the mortgage money and not a lease of the properties and that the relationship of landlord and tenant did not come into existence between the mortgagee and mortgagor.

4. I must confess with great regret that I am unable to concur in this view. The mortgage was with possession and die mortgagees were entitled by virtue of their legal tide to immediate possession of the premises in question. They were at liberty to reside in the premises themselves or to create a tenancy in favour of the mortgagors or in favour of another person. They 'leased out the premises to the mortgagors and the latter became the tenants of the mortgagees for a tenant is one who occupies the premises of another in subordination to that other's title & with his assent express or implied. When a mortgagee with possession allows the mortgagor to remain in possession of the mortgaged property on the mortgagor executing a lease, the relationship of landlord and tenant comes into existence, Bakshi Ram v. Buta Singh, 58 Pun LR 574: (AIR 1957 Punj 57) (B). It may be that the mortgagees intended to secure on the amount lent an income equal to the interest at a certain rate, but as pointed out in Asa Ram v. Kishan Chand, AIR 1930 Lab 38& (C) they were not precluded from entering into a transaction of this kind.

5. For these reasons I would uphold the order of the Courts below and dismiss the petition.There will be no order as to costs.


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