Mahendra Bhushan, J.
1. This is a defendant's second appeal arising out of a suit filed by respondent Mst. Gulabi under Order 21, Rule 103. C. P. C.
2. The suit property is situated in village Srinagar, District Ajmer and more fully described in Schedule 'A', annexed to the plaint. One Codu was the owner of the suit property. Mst, Gulabi is his widow, and one Ramlal is alleged to be his adopted son. Under the registered mortgage deed dated 13-5-1958 of the suit property, a usufructuary mortgage was created by Mst. Gulabi and Ramlal in favour of one Chandan Mal for a consideration of Rs. 350/-. Thereafter, Mst. Gulabi was inducted as a tenant by the mortgagee Chandanmal in the suit property. Ramlal, the adopted son of Codu, sold the suit property to Champalal defendant-appellant for a consideration of Rs. 2500/- under the registered sale deed in August. 1959. Out of the sale consideration, a sum of Rupees 400/- was left with the appellant for redemption of the property, which, as stated earlier, had been mortgaged with Chandan Mal. Though the case of the appellant was that he had paid to Chandanmal Rs. 400/- but this payment was disputed and, therefore, the appellant filed a suit for redemption against the mortgagee Chandanmal and possession was also claimed. Later on, Mst Gulabi was also arrayed as one of the defendants. That suit for redemption was decreed on September 30, 1963, and in execution of the said decree possession of the suit property was taken from Mst. Gulabi on November 20, 1965. Mst. Gulabi first filed objections under Order 21, Rules 100 and 101, C. P. C. but these objections were dismissed on July 7, 1966. Thereafter, Mst. Gulabi respondent filed a Civil Suit No. 171/66 against the appellant and the mortgage Chandanmal under Order 21, Rule 103, C. P. C. on 8-7-66. It was averred in the plaint that there was no decree against her for possession of the suit property, and that a co-mortgagor could not dispossess another mortgagor in execution of decree. That she was in rightful possession of the property in her own right, and that a tenant of the mortgagee cannot be dispossessed in a decree against mortgagee for redemption of mortgage. The suit was contested by the appellant, and the allegations of the plaint were traversed, It was pleaded in the written statement that Mst. Gulabi was a party to the redemption suit instituted by the appellant, and as such the present suit is barred by the principle of res judicata. The learned trial Court on the pleadings of the parties framed the following issues:--
1. Whether the plaintiff has been dispossessed from the suit premises illegally due to the reasons given in para 8 of the plaint?
2. What is the value of the property?
3. Whether this court has got no jurisdiction to entertain the suit?
4. Whether the suit is barred by constructive res judicata?
3. The learned Munsif, after recording the evidence for the parties, and after hearing arguments, decreed the suit of MST. Gulabi. An appeal was preferred by the appellant before the learned District Judge, which was transferred for disposal in accordance with law to the Additional District Judge, Aimer, who, under his judgment and decree dated April 10. 1968, dismissed the appeal.
4. The question, which is a question of law, as to whether in a decree for redemption, the tenant of the mortgage can be evicted, arises for determination in this appeal. Under Order 21, Rule 103, C. P. C., as it stood prior to the amendment by the Amendment Act, 1976, any party, not being the judgment-debtor, against whom an order had been made under Rules 98, 99 or 101 could institute a suit to establish the right, which he or she claims to the present possession of the property. Subject to the result of such suit, the aforesaid order made was to be conclusive. If a tenant of the mortgage whose tenancy was created during the subsistence of the mortgage can be evicted in execution of a decree for redemption, then it can hardly be said that the person who files a suit under Order 21, Rule 103. C. P. C. as it stood prior to amendment of 1976, has any right to the present possession of the property. Under Section 76(a) of the Transfer of Property Act, if during the continuance of the mortgage, the mortgage takes possession of the mortgage property, he has to manage the property as a person of ordinary prudence would manage it, if it were his own. But, under Section 111(c) of the Transfer of Property Act, a lease of immovable property determines where the interest of the lessor in the property terminates on or his power to dispose of the same extends only to the happening of any event by the happening of such event. The power of the mortgage to manage the property extends only till such time as the property is redeemed. In Mahabir Gope v. Harbans Narain Singh, AIR 1952 SC 205, their Lordships have held:
'The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself, has, A mortgage cannot, therefore, create an interest in the mortgaged property which will ensure beyond the termination of his interest as mortgage. Further, the mortgage, who takes possession of the mortgaged property, must manage it as a person of ordinary prudence would manage, if it were his own; and he must not commit any act which is destructive or permanently injurious to the property. It follows that he may grant leases not extending beyond the period of mortgage; any lease granted by him must come to an end at redemption. A mortgage cannot during the subsistence of the mortgage act in a manner detrimental to the mortgagor's interests such as by giving a lease, which may enable the tenant to acquire permanent or occupancy rights in the land, thereby defeating the mortgagor's right to has possession, it would be an act which would fall within the provisions of Section 76, Sub-clause (e) of the Transfer of Property Act.'
5. In Bhanshali Kushalchand Ramji v. Sha Shamji Jivraj, AIR 1958 Bom 53 the aforesaid ruling of the Supreme Court was relied upon. It was held that Section 76(a) and (e) of the Transfer of Property Act do not empower the mortgage to create a lease of the mortgaged property, which is to ensure beyond the redemption of the mortgage itself, and it is quite clear even from Section 111(e) of the Transfer of Property Act, This authority further lays down that in such circumstances the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act No. 57 of 1947) cannot be available to the defendant tenant. In Kamlakar & Company v. Gulam Shafi-Imambhai, AIR 1963 Bom 42, a similar view was taken. It was further held that a redemption decree can be executed even against a tenant of the mortgages. In Ram Kailash Singh v. Baliram Singh, AIR 1963 Pat 26, it was held that the settlement of land could not be valid and subsisting beyond the period of the mortgage and on redemption the said leases were liable to be effected. In K. W. Appu v. State of Kerala, AIR 1974 Ker 2, it was held by the learned single Judge that the tenancy of a tenant inducted by the mortgage in possession comes to an end on termination of mortgage's interest and such a tenant is not entitled to protection of the Rent Act. In Lalji Purshottam v. Thacker Madhavji Meghaji, AIR 1976 Gui 161 a Full Bench authority of Guiarat High Court, their Lordships have held that leases created by the mortgagee in possession are not protected under Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Their Lordships have further held that even apart from Section 76(a) of the Transfer of Property Act, if the words of the mortgage deed clearly and indubitably express an intention to allow expressly creation of a tenancy beyond the term of the mortgage, then only the lease created in exercise of the power expressly conferred by the mortgage deed would be binding on the mortgagor. If the words of the mortgage deed do not clearly and indubitably disclose the intention to allow expressly the creation of a tenancy beyond the terms of the mortgage, the mere fact that the mortgage deed authorises the mortgage with possession to induct a tenant would not create a tenancy binding on the mortgagor after the redemption of the mortgage.
6. Mr. Dhingra, the learned Advocate for Mst. Gulabi has placed reliance on Dr. Gian Singh Karmsingh v. Mohanlal, AIR 1964 Puni 346, Ghamandi Ram v. Shanker Lal, AIR 1966 Rai 19, and Shrinarain v. Lachhiram, AIR 1971 Rai 38, in support of his submission that the protection of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is available to a tenant of the mortgagee. But, it will suffice to say that in view of the pronouncement of their Lordships of the Supreme Court in Sachalmal Parasram v. Mst. Ratan Bai, AIR 1972 SC 637, this contention has no force, and the law laid down to the contrary in the aforesaid authorities cannot be said to be good law any longer. In Parasram's case (supra) their Lordships have held that the tenancy created by the mortgagee in possession does not survive the termination of the mortgage's interest. The termination of the mortgage's interest terminates the relationship of landlord and tenant. There being no landlord and tenant, the tenant cannot claim protection of the Rent Control Legislation (in that case M. P. Accommodation Control Act, 1961).
7. Therefore, I am of the opinion that the position of law cannot be disputed that in a redemption decree the tenant of the mortgage inducted during the continuance of the mortgage can be evicted and the protection of the Rent Control Act is not available to him.
8. In view of the provisions of Sections 60 and 95 of the Transfer of Property Act, to my mind one of the several mortgagors can redeem the mortgaged property. I may simply refer here to Mirza Yadalli Beg v. Tukaram, AIR 1921 PC 125, and Ram Nivasi v. Md. Shafi, 1977 WLN (UC) 338. Therefore, when in a redemption decree to which even Mst. Gulabi was a party. Mst. Gulabi was evicted and could be evicted in accordance with law, firstly, it cannot be said that she was not bound by the decree, and secondly that she had any right of present possession of the suit property. Therefore, her suit under Order 21, Rule 103, C. P. C. could not have been decreed by the courts below. The appellate court though held that the tenancy created by the mortgage in possession could not ensure beyond redemption, but holding that Ms. Gulabi thereafter became the trespasser and ' could only be evicted by due process of law, upheld the decree of the trial Court, which decreed the suit of Mst. Gulabi. This approach of the learned appellate court in view of what has been stated earlier that in a redemption decree against the mortgage, the tenant of the mortgage, if the tenancy created during the subsistence of the mortgage can be evicted cannot be said to be correct.
9. In the result, the appeal is allowed, the judgment and decree of the two courts below are set aside and the suit of Mst. Gulabi for possession against the appellant is dismissed. But, in view of the facts of this case, the costs are made easy.