1. I am unable to agree with the District Judge that when a mortgage is redeemed the lease created by the redeemed mortgagee is still subsisting and that by virtue of Section 74 of the Transfer of Property Act when it is a 2nd mortgagee that redeems the prior mortgage the redeeming mortgagee gets the landlord's rights as against the tenants of the latter.
2. I consider when a mortgage is redeemed subsidiary rights created on the mortgaged property such as lease rights come to an end ipso facto and any former tenant continuing on the land must be treated as a trespasser thereafter unless of course from the conduct of parties or otherwise a fresh tenancy can be held to have been created or an implied tenancy arises 'See Govinda-swami Pillai v. Pethaperumal Chetty (1918) 44 I.C. 839 Adjoodhya Singh and others v. Girdharee 2 N.W.P.H.C.R. 199 and Ram Chand v. Rajbans (1906) 3 All L.J. 517 . Our attention was called to the ruling in Chinnappa Thevan v. Pazhaniappa Pillai (1915) 2 L.W. 1132 where it was held that the possession of the tenants who were in occupation of the land under the mortgagee was not adverse to the mortgagor who had redeemed the mortgage under whom they were originally holding. So far as that case is taken to decide the question as a matter of law I am not prepared to follow it. Seshamma Shettati v. Chickaye Hegade I.L.R(1902) .Mad. 507 cited therein left the question entirely open and the Allahabad case cited. The Collector of Basil v. Sarnam Gharak (1911) 8 All. L.J. 802 was the judgment of a single judge and with all respect to the learned Judge it is difficult to see how the tenancy created by the mortgagee continues after redemption when the learned Judge himself has held that it is not binding on the redeeming mortgagor.
3. In Chinnappa Thevan v. Pazhaniappa Pillai (1915) 2 L.W. 1132 however, there was a document, Ex G, which was construed as transferring the mortgagee's rights to tlje. mortgagor. In that case the mortgagor as assignee will hsjve the rights of his assignor, the mortgagee, and the ruling may be supported on that ground.
4. As regards Section 74 of the Transfer of Property Act the District Judge has omitted to notice that the section gives the redeeming 2nd mortgagee only the rights, and powers of the I redeemed mortgagee as such. It does not pass any rights of his as landlord.
5. It follows from the above that in the present case the defendants were really trespassers as they refused to accept plaintiff as their landlord and repudiated his attempt to treat them as his tenants. The suit should have been valued for court fees as a suit for possession of property under Section 7 Clauses (5) Court Fees Act.
6. The respondent's vakil asks us to be allowed an opportunity to pay the right Court Fees and to amend his pLalnt. Though it is true he did not take advantage bf the offer by the 1st Court I am inclined to grant him this indulgence provided he pays the court fees in one month's time from this day in the first court and amends his pLalnt as advised. In default the decree dismissing the suit with costs will stand. Plaintiff will pay the defendant's costs in this and the lower appellate court. The costs in the 1st court will be disposed of by that court.
7. I agree. The lease has come to an end on redemption by 2nd mortgagee. It is quite clear that this was the position in English Law up to very shortly before the time when the Transfer of Property Act came into force here. The power of leasing was given to a mortgagee under certain conditions by Section 18 of the Conveyancing Act 1881 but that power was not incorporated in the Indian enactment. I cannot see any difference in principle and we were referred to an authority on the point) which differentiates the case of redemption by a mortgagor from redemption by a subsequent mortgagee with reference to leases created by the redeemed mortgagee. The statement of the law in Govindaswami Pillai v. Petha-perumat Chetty (1918) 44 I.C. 839 is in my opinion correct and the case in Chinnappo Thevan v. Pazhaniappa Pillai (1915) 2 L.W. 1132 cannot be treated as an authority on the point as it dealt with the special provisions (not reported) of Ex. G. The point is expressly left open by the judgment in Seshamma Shettati v. Chickaye Hegade I.L.R. (1902) Mad. 507 . The case in The Collector of Basti v. Sarnam Gharak (1911) 8 All. L.J. 802 is that of a single Judge and is unreported in the authorized reports. I am not prepared to follow it. There can further be no question of holding over once it is conceded that the tenancy can of course be begun but the defendant's conduct here in repudiating the relationship of landlord and tenant when the mortgagee served him with notice to quit 4 days after he had redeemed clearly puts an end to any such contention. The defendants here are therefore in the position of a trespasser. I am unable to see how a tenancy created by a mortgagee does not come to an end in this country on redemption and I think the case where this has been held to take place in the case of redemption by a mortgagor must be held equally applicable to the case of redemption by a subsequent mortgagee.
8. Section 74 of the Transfer of Property Act only gives the redeeming mortgagee the rights and powers of the mortgagee as such. This does not extend to a case such as this. I agree in the order proposed by my learned brother.