Mahendra Bhushan Sharma, J.
1. This is a defendant's second appeal arising out of a suit filed by respondent Mst. Gulabi under Order 21, Rule 103, CPC
2. The suit property is situated in village Srinagar; District Ajmer, and more fully described in Schedule 'A' annexed to the plaint. One Godu 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 13-5-58 of the suit property, a usufructuory 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 Godu, 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 Rs. 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 29, 1965. Mst. Gulabi first filed objections under Order 21, Rule 100 and 101, CPC 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 mortgagee Chandanmal under Order 21, Rule 103, CPC 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 or decree, that she was in 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 9 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, Ajmer, 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 mortgagee can be evicted, arises for determination in this appeal. Under Order 21, Rule 103, CPC, as it stood prior to the amended by the Amendment Act, 1976, any party, not being the judgment-debtor, against whom an order had been made under Rule 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 mortgagee 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, CPC, as it stood prior to amendment of 1976, had any right to the present possession of the property. Under Section 76(a) of the Transfer of Property Act, during the continuance 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 case of immovable property determines whether the interest of the lessor of 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 mortgagee to manage the property extends only till such time as the property is redeemed. In Mahabir Gape and Ors. v. Harbans Narain Singh and Ors. : 1SCR775 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 mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee. Further, the mortgagee, 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 leases granted by him must come to an end at redemption. A mortgagee 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 take 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 and Anr. v. Shah Jivraj and Ors. : AIR1958Bom53 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 mortgagee to create a lease of the mortgaged property, which is to enure 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 the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 (Act No. 57 of 1947) cannot be available to the defendant tenant. In Kamlakar and Company v. Gulam Bhai Imambhai Musalman : AIR1963Bom42 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 and Ors., : AIR1963Pat26 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 lease were liable to be affected. In K.N. Appu v. State of Kerala and Ors. : AIR1974Ker2 , it was held by the learned Single Judge that the tenancy of a tenant inducted by the mortgagee in possession comes to an end on termination of mortgagee's interest and such a tenant is not entitled to protection of the Rent Act. In Lalji Purshottam v. Thacker Madhavji : AIR1976Guj161 a Full Bench authority of Gujarat High Court, their Lordships have held that leases created by the mortgagee in possession are not protected under the 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, 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 mortgagee with possession to induct a tenant would not create 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. Gyansingh Karamsingh v. Mohanlal and Ors. AIR 1964 Punj. 346, Ghamandi Ram and Anr. v. Shankarlal and Anr. AIR 1966 Raj. 19 and Shrinarain and Ors. v. Lachiram and Ors. AIR 1971 Raj. 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 and Ors. AIR 1972 SC 63 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 mortgagee's interest the termination of the mortgagee'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 the 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 mortgagee 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 and Anr. AIR 1971 PC 125 and Ram Nivasi v. Md. Shafi and Anr. of Girdikot, Jodhpur 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, CPC could not have been decreed by the courts below. The appellate court though held that the tenancy created by the mortgagee in possession could not enure beyond redemption, but holding that Mst. Gulabi thereafter became the trespasser and could only be evicted by the process of law, upheld the decree of the trial Court, which decreed the suit of Mst. Gulabi. The approach of the learned appellate court in view of what has been stated earlier that in a redemption decree against the mortgagee, the tenant of the mortgagee, 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 dismissed. But, in view of the facts of this case, the costs are made easy.