Kan Singh, J.
1. I have before me two second appeals of identical nature filed by an unsuccessful defendant in an action for realisation of rent of a shop. As the fate of these appeals falls to be determined on a common question of law, they can conveniently he disposed of together.
2. Gehrilal and Inderlal were the owners of the shop in dispute. On 31-7-41 they mortgaged it with possession for an amount of Rs. 2,699 with one Ismail and Sadiq Hussain. The latter gave it on lease to the mortgagors Gehrilal and Inderlal on a monthly rent Rs. 11 on 16-8-44. Gehrilal and Inderlal in turn sublet it on 3-4-49 to the defendant Bhoori Lal on a monthly rent of Rs. 60. On 12-9-59 mortgagors Ismail and Sadiq Hussain sub-mortgaged it with Bhoori Lal the defendant who was already holding it on sub-lease from Gehri Lal and Inderlal. On 12-1-59. Bhoorilal filed a suit for the recovery of the arrears of rent amounting to Rs. 2,160 from Gehrilal in the Court of the Additional Civil Judge, Udaipur. Subsequent to that he filed another suit for the rent that had fallen in arrears after filing of the first suit. Bhoori Lal in resisting the suits raised several pleas one of which was that as a result of the sub-mortgage in his favour the liability of Bhoorilal to pay any rent to Gehrilal and Inder Lal came to an end on the principle of merger enshrined in Section 111(d) of the Transfer of Property Act. The first Court decreed the suits. The defendant then filed separate appeals in the Court of the District Judge, Udaipur, but was not successful Aggrieved of the judgment and decree of the learned District Judge the defendant has lodged the two second appeals in this Court.
3. As observed at the outset the only point arising for consideration is about the applicability of the doctrine of merger in the present case. Relevant portion of Section 111 of theTransfer of Property Act runs as under:
'Section 111. Determination of lease. A lease of immoveable property determines- ... .... .... ....
(d) in case the interests of the lessee and the lessor in the whole of the properly become vested at the same time in one person in the same right:
A merger of interest as envisaged in this section is brought about when any estate or property becomes vested at the same time in the same person in the same right. In such a case a smaller interest has been carved out of a larger interest and at a subsequent stage the interest so carved out and the remaining interest out of the original subsequently stand combined in the hands of one person so that the two interests put together fall in one piece to constitute the old interest in its entirety. The underlying principle is that a person can not at the same time be a lessor and lessee of the same property. The merger of interests may be brought about in a variety of ways namely, by purchase, release, by operation of law or in any other manner, but the essential requirement of such a merger on integration of interest is that the two kinds of interests must be vested in the same person and in the same right. Principles of this doctrine have been elucidated by their Lordships of the Supreme Court in Badri Narain Jha v. Rameshwar Dayal Singh, AIR 1951 SC 186. The following passage from their Lordships' judgment may usefully be quoted:
'If the lessor purchases the lessee's interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessor's interest. In such a case the lease-hold and the reversion cannot be said to coincide.'
From the above passage it will be evident that what is of the essence of the matter is that the lease-hold and the reversion must coincide in the hands of one person. Applying this test I have now to see whether in the present case it can be predicated that the lease-hold rights created in Bhoorilal defendant as a result of the sub-lease in his favour by Gehrilal and Inderlal coincided with the reversion that was in his lessors. What Bhoorilal really acquired as a result of the sub mortgage in his favour by the first mortgagees Ismail and Sadir Hussain were the rights as a sub-mortgager The right to redeem this sub-mortgage did remain with Ismail and Sadiq Hussain Therefore, in the very nature of things what became vested in Bhoorilal was something short of the entire interest which even if it is added to the lease hold interest cannot be said to comprise the right of reversion in the leased property This fundamental test of the lease hold interest & the reversion combining to form the entirelyof the estate is, to my mind, not satisfied in the present case. Thus, the lower Courts cannot be said to have been in error in repelling the plea raised by the defendant in the two suits.
4. Learned counsel for the appellant however, urges that though in suit No. 11/56 the Courts below have reduced the rent to the tune of Rs. 11 per month on the ground that Gehrilal and Inderlal were themselves to pay a monthly rent of Rs. 11 to the mortgagees Ismail and Sadiq Hussain, in terms of the sub-mortgage, this rent was now payable to the sub-mortgagee namely, Bhoorilal. But, according to him, this rent has not been deducted while decreeing the suit No. 8/59. Mr. Hastimal appearing for the respondent has frankly conceded that this deduction could be rightly claimed by the defendant appellant. This amount in the suit, just mentioned comes to Rs. 2,160. Thus, the decretal amount should be reduced to Rs. 1,764 only. This suit is subject matter of second appeal No. 271 of 1960.
5. The result is that while I dismissappeal No. 81 of 1964, I partially accept appealNo. 271 of 1960 and reduce the decretal amountto Rs. 1,764 only. Both the parties are left tobear the costs of this Court.