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Smt. Maina Devi Vs. Thakur Mansingh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil First Appeal No. 114 of 1980
Judge
Reported inAIR1986Raj44; 1985(2)WLN329
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 - Order 41, Rule 27; Transfer of Property Act, 1882 - Sections 60
AppellantSmt. Maina Devi
RespondentThakur Mansingh and ors.
Appellant Advocate S.R. Buj,; Dilip Singh and; J.K. Dhingara, Advs.
Respondent Advocate M.M. Tiwari, Adv.
DispositionAppeal dismissed
Cases Referred and Sachalmal Parasram v. Mst. Ratanbai
Excerpt:
.....to the mortgagor back and the mortgagee cannot be allowed to continue in possession thereafter as tenant. shri buj contended that these are not clogs on redemption, as held by the lower court and shri tewari submitted that there could not have been worst type of clogs than the present one because, here under the garb of the mortgage, the mortgagee had tried to become owner intrigue by saying that he would be allowed to continue in possession. 411, wherein the rights of mortgagee on redemption have been emphasized, and it has been laid down that on redemption, he would hold and enjoy the property in the same way as he was entitled to enjoy before the mortgage. 34. it would be inequitable and injustice, if under the garb of the advancing monies as mortgagee to the mortgagor' a mortgagee..........11) that, where the rajasthan premises (control of rent & eviction) act, 1950 is applicable, the tenant of mortgagee in possession cannot claim its protection against mortgagor after redemption of mortgage.27. shri tewari in support of the above judgment of this court referred to the decisions which have been referred therein : all india film corporation ltd. v. raje gyan nath (1969) 3 scc 79 and sachalmal parasram v. mst. ratanbai, air 1972 sc 637. in these cases, the principles which are well known, arid have been emphasized time and again that so far as the mortgagee's possession is concerned, once the redemption is made of the mortgage the possession will have to be given to the mortgagor back and the mortgagee cannot be allowed to continue in possession thereafter as tenant. it.....
Judgment:

Guman Mal Lodha, J.

1. This is a Civil first appeal against the judgment & decree dated the 26th Jan. 1980 passed by the District Judge, Jaipur City, Jaipur by the defendant appellant-Smt. Maina Devi against the plaintiff-respondents.

2. Before this Court, in this first appeal, the decree in Civil Suit No. 11/78 granting redemption of mortgage and the possession of the property on it is being challenged.

3. There is no dispute so far as the facts are concerned because, whatever documents have been exhibited in the case in the form of first mortgage and second mortgage making it clear that the parties entered into mortgage deed at two different points of time.

4. The important feature of this case is that so far as the record goes, the second mortgage deed for Rs. 20,000/- was executed on 2nd August, 1975, and by this whereas on the one hand the first mortgage deed dated the 26th May, 1973 was redeemed and that amount was included in this, the property which was now to be mortgaged was specified in this.

5. The whole controversy now which has been raised, relates to the question, whether on redemption of mortgage, the plaintiff would be entitled to possession of the mortgaged property in view of the conditions Nos. 4 and 10 of the second mortgage deed (Ex.1).

6. It would be necessary to have a close look and study of these two conditions of the document (Ex 1) which reads as follows :--

4- izFke i{k vkt ls 15 ekg rdf}rh; i{k ls :i;k nsdj edkukr ugh NMk ldsxk A 15 ekg ds i'pkr vkSj 30 ekg dh vof/kds vUnj tc Hkh izFke i{k pkgsxk :i;k vnk djds edkukr vius dCts essa ys ysxk ;kfuujsUnzdqekj ;k esjs }kjk fdjk;kukek cny fn;k tk;sxk] bles izFke i{k dks vkifRrdjus dk vf/kdkj ugha gkxk A ;fn izFke i{k vkt ls rhl ekg rd bl nLrkost dk dqy :i;kf}rh; i{k dks vnk djds okfil u NMk lds rks fuEufyf[kr ekdkukr bUgha :i;ksa esafopkSrh gkuk le>s tkosaxs A vkSj rhl ekg ds i'pkr f}rh; i{k izFke i{k ds lekuiw.kZr;k Lokfeuh o vf/kdkfjuh gks tk;sxh vkSj f}rh; i{k dks fuEufyf[r ekdkukrdks izR;sd izdkj ls ifjorZu ,oa gLrkUrfjr djus ds iw.kZ vf/kdkj izkIr gksax A

10- tc Hkh izFke i{k f}rh; i{kdks :i;k vnk djsxk ml le; dCtk f}rh; i{k ls fdjk;kukes }kjk ys ysxk blesa izFkei{k dks vkifRr djus dk vf/kdkj ugha gksxk A

7. It is the case of the appellant that the appellant-mortgagee-defendant was already in possession of the property and the first as well as the second mortgage deeds were executed when some amount was advanced to the mortgagor for tiding over financial difficulties. This fact would have been very important for position of the case if it would have been established

8. However, I find that on a reading of both the documents the first mortgage deed as well as the second mortgage deed, it is obvious that it nowhere shows that before the documents were executed, the defendant was in possession of this property or part of the property as a tenant purely simple or simpliciter.

9. Confronted with the shown difficulty. Shri S.R. Buj and Shri Dilip Singh, the learned Advocate appearing for the appellant-defendant submitted an application under Order 41, Rule 27, CPC, and prayed therein that the mortgage deed dated the 2nd June, 1973 and the agreement dated the 15th May, 1973 may be taken on record for the purposes of decision of the present first appeal.

10. This application was opposed by Shri M.M. Tewari, the learned Advocate for the plaintiffs respondents, first on the ground that there was no plea in the written statement that prior to the execution of the mortgage deed, the defendant was a tenant simpliciter of whole of this property or any part of the property. It was pointed out that neither any such plea was taken in the written statement before the trial Court nor any issue was struck and therefore, the plaintiff cannot be taken by surprise by production of such document for making out a case which was never set up in the pleadings and for which the plaintiff have got no opportunity to defend it.

11. Secondly, it was submitted that this document ulmost only shows that there was a prior mortgage and according to the agreement nothing was to be done with it and, therefore, it has got no relevancy so far as the point now raised about the earlier tenancy is concerned.

12. I have carefully gone through the application dated the 29th Jan. 1985 and the affidavit filed with it. In the said application, all that has been said is that the documents are important, and one of them is registered one and no evidence is required to prove them.

13. No reason has been given as to why these documents were not produced before the trial Court when the suit has remained pending for a long time and secondly at the time of filing of the appeal or after filing of appeal till the case was argued in hearing, and thirdly merely because the document is registered one, there cannot be any proof of its execution. So far as the second document is concerned, it is unregistered document which would certainly require evidence to support it but, for proving it an equal opportunity to either sides to rebut the evidence for being that document is disputed one and denied is essential.

14. According to the provisions contained in Order 21, Rule 27, CPC a document can be taken into evidence on one of the various grounds given in it. First ground is that, if the lower Court refuses to take and admit evidence which ought to have been admitted. Obviously this ground is not in existence in the instant case. The second ground is that if the party seeking to produce additional evidence, establishes that notwithstanding the exercise of the diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be found and produced earlier. Obviously there is no such ground available because one of the documents is registered one of 26th May, 1973 and second one is also said to be an agreement of 15th May, 1973, and there is no allegation that there documents could not be earlier found with due diligence and were not in the knowledge of the defendant.

15. The third ground is that, the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.

16. After hearing the learned counsel, at length, on the merits of the case, I am of the opinion that these documents even if produced and proved, would not be helpful in assisting this Court for adjudication of the controversy between the parties. Again, it is not the case where, in the absence of these documents, the Court would be handicapped to decide the appeal. In substance, this Court would not require production of these documents to enable it to pronounce judgment and there is no other substantial cause for permitting them to produce now and then start second inning of the case by permitting the parties to lead evidence afresh in support of the proof, or to disprove these documents.

17. The appellant has not given any reason whatsoever for silence adopted by the defendant and not producing them for last about 8 years. The obvious reason is that even after they were in existence, they were thought to be irrelevant for the purposes of decision of this case. I would, therefore, reject this application and would not permit the defendant appellant to produce the documents mentioned in the said application afresh in this appeal.

18. Additional reason for rejecting the application is that even after perusal of these documents it is not shown that except for the purpose of mortgage the defendant was ever in possession of this property as a tenant simpliciter before the advance of money. That being so, nothing turns upon these; documents.

19. Now coming to the crucial question in controversy between the parties, Shri Buj assisted by Shri Singh has greatly laid importance and emphasized on the point that, the mortgagee was a tenant and even when redemption is made of mortgage his tenancy rights cannot be brushed aside. He submitted that this would mean exploitation of tenants by mortgagor. It was argued that by virtue of the decision of the Apex Court in Gambangi Appalaswamy Naidu v. Behara Venkataramanayya Patro AIR 1984 SC 1728 the law laid down as now stands clearly supports his arguments that merely because redemption of mortgagee rights to the tenancy would not be distinguished and there would be no handing over possession back and the mortgagee would continue as tenant.

20. Prima facie, this submission of Shri Buj is plausible and appears to have been supported by the judgment referred to above. However, on a thoughtful study of this judgment (supra). I find that it fails to support he case of the appellant. In the above judgment of the Apex Court (supra), there was an agricultural tenancy independent of the mortgagee and earlier in point of time of the mortgagee. I have used two phrases, 'independent of the mortgagee' and, 'earlier to the point of mortgagee', purposely, deliberately, because that takes away from the sole controversy with the terms, on which their Lordships of the Apex Court have laid that the tenancy right would not come to an end in the case of redemption of mortgage exclusively, and is wholly based on the ground that there was an earlier agricultural tenancy in existence in that case, and the tenant advanced monies to the landlord mortgagor for relieving him and helping him for financial difficulties, and it was for this purpose that the mortgage was executed.

21. The pertinent crucial observations made by their Lordships in G. Appalaswamy v. B. Venkataramanayya (AIR 1984 SC 1728) (supra) are done in para 8 which runs as under

'But under the terms of the deed one thing is clear that during the currency of the mortgage the liability to pay rent to the lessor-mortgagor (albeit to be discharged by adjustment) is kept alive. If anything, such a term clearly runs counter to any implied surrender of the lessee's rights. Secondly there is no term fixed for redemption of mortgage property which means that it was open to the mortgagor to redeem the mortgage at any time that is to say even within a very short time and if that be so would a sitting tenant cultivating the lands under a lease who has obliged his lessor by advancing monies to him to tide over his financial difficulties would not give up his rights as a lessee no sooner redemption takes place? In our view: it does not stand to reason that he would do so. This circumstance coupled with the fact that the mortgage deed keeps alive the lessee's liability to pay rent during the currency of the mortgage clearly suggests that no implied surrender was intended by the parties.'

22. I may sum up the deduction from the above judgment in one crucial sentence which has been crucial test for such adjudication and that is, whether in case of earlier tenancy, there was surrender of tenancy rights by the tenant at the time of the execution of the mortgage.

23. This pre-supposes earlier tenancy and refusal to surrender. Their Lordships of the Apex Court found on facts that there was earlier tenancy and when the mortgage was executed, the tenant never surrendered his tenancy rights. If the tenant has not surrendered the tenancy rights by mortgage and has only obliged landlord by advancing monies to him to tide over his financial difficulties then naturally the Apex Court said that this act is benevolent and this act of benevolence cannot result in suit proceedings and would not have helped him because he never thought and never intended that his approach would came to an end he would turn his own rights in doing this benevolent act What the Apex Court has Said is that the tenant would be not allowed to turn his rights on the contrary by surrender of his rights of tenancy, and that having not been done, their Lordships observed impliedly that the Court would not commit mistake by evicting him and throwing him out from the agricultural land where he was cultivating earlier to the mortgage.

24. The above detailed analysis of the above judgment of the Apex Court would show that the present case cannot be termed as nothing similar to that.

25. In the instant case, as I have already observed earlier, it is nowhere even the defendant's case in the first pleadings that they defendant was tenant earlier to first mortgage or second mortgage or agreement so called which has not been said to be introduced. In substance, the defendant came in possession only as a mortgagee and not earlier to it. That being so, no benefit can be given to the appellant from the decision of the Apex Court in G. Appalaswamy's case (AIR 1984 SC 1728) (supra).

26. Shri M.M. Tewari, the learned counsel for the respondent-plaintiffs pointed out that this Court following the judgment of the Apex Court has laid down in a reference to a Full Bench in Devkinandan v. Roshanlal, 1984 Rajasthan LR 709 : (AIR 1985 Raj 11) that, where the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 is applicable, the tenant of mortgagee in possession cannot claim its protection against mortgagor after redemption of mortgage.

27. Shri Tewari in support of the above judgment of this Court referred to the decisions which have been referred therein : All India Film Corporation Ltd. v. Raje Gyan Nath (1969) 3 SCC 79 and Sachalmal Parasram v. Mst. Ratanbai, AIR 1972 SC 637. In these cases, the principles which are well known, arid have been emphasized time and again that so far as the mortgagee's possession is concerned, once the redemption is made of the mortgage the possession will have to be given to the mortgagor back and the mortgagee cannot be allowed to continue in possession thereafter as tenant. It has been discussed in details in these cases that, in case of usufructuary mortgage whereas possession is given in lieu of interest and the rent is adjusted then, adjustment comes to an end at redemption and, therefore, the redemption would logically and legally mean taking back of the possession.

28. Now, so far as the present appeal is concerned, there is another limb of controversy raised by Shri Buj and that is wholly based on Clauses (4) and (10), reproduced above. Shri Buj contended that these are not clogs on redemption, as held by the lower Court and Shri Tewari submitted that there could not have been worst type of clogs than the present one because, here under the garb of the mortgage, the mortgagee had tried to become owner intrigue by saying that he would be allowed to continue in possession. On a reading of Clauses (4) and (10), it becomes clear that the mortgagee by giving advance of money to the mortgagor has tried to put a covenant by which the mortgagee would be entitled to continue in possession for ever, either by changing of rent deeds or by becoming owner mentioned in Clause (4).

29. The trial Court has discussed the concept of clog and equity on redemption, and in that respect, he has referred to the commentary on Transfer of Property Act by Shri T.F. Mulla (6th Edn. 1973)p. 411, wherein the rights of mortgagee on redemption have been emphasized, and it has been laid down that on redemption, he would hold and enjoy the property in the same way as he was entitled to enjoy before the mortgage.

30. Any covenant to prevent him from doing so, that would, in terms, be a clog on equity of redemption. In support of the above, reliance has been placed on the various decisions reported in (1910) 6 Ind Cas 707; AIR 1922 Bom 277; AIR 1920 Pat 144; AIR 1925 All 427; AIR 1934 Pat 397; AIR 1951 Saurashtra 53, in all which Section 60 of the T.P. Act has been interpreted, and any covenant or title or clause entitling mortgagee to retain possession after redemption as against mortgagor has been unequivocally termed as a 'clog'. I am inclined to accept it and, agree with the finding arrived at by the learned trial Court that, clause/condition Nos. (4) and (10) of the mortgage deed amount to clog on equity of redemption.

31. Shri Buj and Shri Singh appearing for the appellant then submitted that even by the judgment of the Full Bench in paras 16 and 17, in which reference has been made to the judgment of the Apex Court, the right of a mortgagee to give tenancy rights if expressly permitted by the mortgagor to sub-tenant has been upheld, and in that case, it has been law down that in such case, the tenant would continue.

32. I am of the opinion that we are not on that controversy in the present case, at all. The controversy in the present case relates to the right of the mortgagee to continue in possession on redemption; and there also, the question, whether such stipulation in the control to continue in possession as tenant after redemption of the mortgage tantamounts to clog on equity of redemption.

33. I have enquired from Shri Buj that, it they cannot assist by showing any judgment wherein in similar circumstances, it has not been held to be a clog by the Apex Court, obviously such principle has not been enunciated so far by the Apex Court because, it would be in terms against the provisions of Section 60 of the Transfer of Property Act and the entire scheme of the mortgagee and mortgagor's rights.

34. It would be inequitable and injustice, if under the garb of the advancing monies as mortgagee to the mortgagor' a mortgagee is allowed to abuse and misuse his possession and become a perpetual tenant which, in the present set of circumstances, would tantamount to giving him almost right to enjoy the property unless evicted by due course of law in separate proceedings under the rent control laws. It was in these circumstances that even for the sub-tenant who had no privity of the contract with the mortgagor their Lordships of this Court in Full Bench decision (AIR 1985 Raj 11) (supra) has held following the decision of the Apex Court (AIR 1984 SC 1728) (supra) that sub-tenant of the mortgagee would not be entitled to the protection of rent control law.

35. The result of the above discussion is, that I am in agreement with the findings, both, on facts as well as law, arrived at by the trial Court, and, therefore, it is not necessary to mention and discuss, in details, the facts and the evidence both, orally and documentary, in the present case as, that would be only repetition of what the trial Court has said. I have dealt with extensively the submissions and contentions made and urged by the learned counsel for the appellant-defendant, above, and no other point remains to be decided now in addition to the above.

36. With the above observations, this appeal fails, and is hereby dismissed with costs.

37. Shri Buj now submitted that some time may be granted to vacate the premises in dispute. This request appears to be reasonable and just. Hence, the appellant is allowed six months time to vacate the premises in dispute on the following conditions.

1. that, the appellant should give undertaking within a period of two weeks from today before this Court that on expiry of six months from today he would surrender the vacant possession and without any demur or protest or challenge any further;

2. that he would keep the premises in well good conditions without any damage or loss;

3. that, he would, for this period of six months, pay an amount of Rs. 300/- as compensation to the plaintiff-respondents by every tenth of succeeding month. Application dt. 29-1-85 under Order 41, Rule 27, C.P.C. is rejected.


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