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issack Vs. Pappu Nair - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S.A. No. 14 of 1971
Judge
Reported inAIR1974Ker183
ActsTransfer of Property Act, 1882 - Sections 64; Trusts Act, 1882 - Sections 90
Appellantissack
RespondentPappu Nair
Appellant Advocate E.P. Poulose, Adv.
Respondent Advocate P.N. Sankaranarayana Pillai, Adv.
DispositionAppeal dismissed
Cases ReferredLakhmi Chand Khemani v. Kauran Devi
Excerpt:
- - ' 10. the general rule is that a person cannot, by transfer or otherwise, confer a better title on another than what he himself has. therefore, the appeal is without merits and has to fail......from a devasworn.2. the devasworn obtained a decree for eviction with arrears of rent against the lessee-mortgagor on 28-6-1111. the mortgagees were also parties to the decree. it was after this decree that the mortgagees got release of the earlier mortgage and got possession of the property.3. the defendant got assignment of the rights of the mortgagees, evidenced by the deed of assignment ex. d-5 dated 31-9-1112; the mortgagor's right devolved on the plaintiff.4. the jenmi-devaswom instead of executing the decree for eviction granted a fresh demise, ex. d-6 of 4-4-1113 to the defendant. it was long thereafter that the plaintiff claiming the right of the mortgagor under ex. d-l brought the present suit for redemption.5. the defendant successfully contended before the trial court that.....
Judgment:

Chandrasekhara Menon, J.

1. The plaintiff in a suit for redemption of a mortgage is the appellant in this appeal. The mortgage is of the year 1103 M.E. Ex. D-l Ms the mortgage deed. By this deed the mortgagees, Iype and Sara were authorised to redeem an earlier mortgage. They redeemed the earlier mortgage and came into possession of the property by Ex. D-4 document dated 31-9-1112. What had been mortgaged as per Ex. D-l was a leasehold right from a Devasworn.

2. The Devasworn obtained a decree for eviction with arrears of rent against the lessee-mortgagor on 28-6-1111. The mortgagees were also parties to the decree. It was after this decree that the mortgagees got release of the earlier mortgage and got possession of the property.

3. The defendant got assignment of the rights of the mortgagees, evidenced by the deed of assignment Ex. D-5 dated 31-9-1112; the mortgagor's right devolved on the plaintiff.

4. The jenmi-devaswom instead of executing the decree for eviction granted a fresh demise, Ex. D-6 of 4-4-1113 to the defendant. It was long thereafter that the plaintiff claiming the right of the mortgagor under Ex. D-l brought the present suit for redemption.

5. The defendant successfully contended before the trial court that after the decree for eviction, the lease in favour of the plaintiff's predecessor-in-interest had come to an end, and with it the mortgage created by the lessee. The learned Munsiff held that the leasehold right over the plaint property was extinguished by the decree for eviction which necessarily put an end to the mortgage created by the lessee. The court further held that the defendant is not in any way estopped from setting up a claim against the mortgagor. The suit for redemption was, therefore, dismissed.

6. The learned Subordinate Judge, before whom the matter was taken up in appeal, was however of the view that the defendant had obtained subsequently a lease Ex. D-6 taking advantage of his possession as a mortgagee. The new demise in favour of the defendant was held not to affect the rights of the plaintiff who was consequently given a decree for redemption of the mortgage.

7. In second appeal a learned Judge of this court restored the trial court's decision. The decree for eviction, it was held, would attract the extinction of the leasehold right, and as a consequence the mortgagor-mortgagee relationship created by Ex. D-l also would cease to exist. The learned Judge granted leave to the plaintiff to appeal to a Division Bench.

8. Learned counsel for the appellant contended for the position that between the plaintiff-mortgagor and the defendant-mortgagee, the defendant is estopped from denying or challenging the title or other rights of the plaintiff and that Section 64 of the Transfer of Property Act and Section 90 of the Indian Trusts Act should be applicable to the case in determining the rights and liabilities of the parties. He strongly relied on the decisions reported in Smt. Bas-mati Devi v. Chamru Sao, (1964) 1 SCWR 683 = (AIR 1964 SC 170V) and Sachida-nand Prasad v. Babu Sheo Prasad Singh, (1966) 1 SCR 158 = (AIR 1966 SC 126). We are afraid that this contention is based on a misconception of the provisions of Section 64 of the Transfer of Property Act and Section 90 of the Indian Trusts Act. Section 64 of the Transfer of Property Act reads :

'Where the mortgaged property is a lease, and the mortgagee obtains a renewal of the lease, the mortgagor, upon redemption, shall, in the absence of a contract by him to the contrary, have the benefit of the new lease.'

Section 90 of the Indian Trusts Act reads:

'Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested the advantage so gained, but subject to repayment of such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.'

9. Continued existence of the relationship of mortgagor and mortgagee I is essential for the application of the aforesaid provisions. In the instant case, by the passing of Ex. D-2 decree, the original lease ceased to exist which resulted in the extinction of the mortgage, which had been created by the lessee. As laid down by the Supreme Court in Lakhmi Chand Khemani v. Kauran Devi, (1967) 1 SCJ 738 = (AIR 1966 SC 1003), quoted by the learned Judge in the judgment under appeal:

'Under the ordinary law applicable to landlords and tenants, a tenant who has suffered an ejectment decree is not considered a tenant any more: he has after the decree none of the rights which as tenant he earlier possessed.'

10. The general rule is that a person cannot, by transfer or otherwise, confer a better title on another than what he himself has. The lessee cannot, therefore, create an interest in the property leased out to him which will enure beyond the termination of his interests as lessee. Therefore, with the extinction of the lease on the passing of the decree for eviction, the mortgage created by the lessee also came to an end. Hence the subsequent lease obtained bv the erstwhile mortgagee cannot attract the provisions of Section 64 of the T. P. Act or of Section 90 of the Indian Trusts Act.

11. In the Supreme Court decisions relied on by the appellant acquisitions were made by the mortgagee taking advantage of his position as a mortgagee during the subsistence of the relationship of mortgagor-mortgagee. Those decisions have no application to the facts of this case. Therefore, the appeal is without merits and has to fail. The appeal is dismissed with costs.


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