J.M. Panchal, J.
1. This appeal under Section 100 of the Code of Civil Procedure. 1908 is directed against judgment and decree dated March 14, 1983, rendered by the learned Assistant Judge, Kutch at Bhuj, in Regular Civil Appeal No. 82 of 1980, by which decree of eviction dated August 27, 1980, passed by the learned Civil Judge (J.D.) Anjar, in Regular Civil Suit No. 47 of 1977 against the appellant, who was tenant inducted by mortgagees, is confirmed.
2. The facts leading to the present appeal are as under. The dispute between the parlies relates to a shop situated towards the west of steps on southern side door of Madhav Raiji Temple, Anjar. The original owner of the suit premises was Thakorshi Naranji. He had mortgaged property to Laxmidas Mulji and Padamshi Mulji for 3,001 Kories for 51 years by registered mortgage deed which was executed on Kartik Vad-5 of S.Y. 1967. The original appellant, i.e., Joshi Trikamdas Padamshi was inducted as a tenant in the suit premises in S.Y. 1995 by the mortgagees in possession. Thereafter, deceased Pokena Joshi Kanku Hariram, father of original plaintiff and heir of original owner of suit premises had again mortgaged the same property to deceased Manu alias Dayaram Laxmidas who was heir of original mortgagees, husband of original defendant No. 1/2 and father of original defendant Nos. 1/1. 1/3 and 1/4 by a registered deed dated Jeth Sud-5 of S.Y. 2003 for 99 years and accepted 12,350 Kories. The first mortgage deed is produced at Ex. 55 whereas the second mortgage deed is produced at Ex. 56 on the record of the case. From the contents of Ex. 56, it is evident that on execution of subsequent mortgage deed, mortgage evidenced by deed Ex. 55 had come to an end and did not subsist thereafter. It was the case of respondent No. 1 that long term of 99 years for redemption being a clog on equity of redemption, he was entitled to redeem the mortgage by making full payment of mortgage money to defendant Nos. 1/1 to 1/ 4 who were heirs of original subsequent mortgagee. According to respondent No. 1. though he had offered full payment of mortgage money to defendant Nov 11 10 1/4. they had failed to deliver possession of the property to him. Under the circumstances, respondent No. 1 filed suit for redemption of mortgage. The original appellant was impleaded as defendant No. 2 because he was inducted as tenant by mortgagees in possession. It may be stated that during the pendency of the Second Appeal, original appellant expired and his legal representatives have been brought on the record of the case.
3. Original defendant No. 1/1 contested the suit by filing written statement at Ex. 21. In the said reply, it was contended that, as the period of mortgage was stipulated to be 99 years, the suit was premature and was liable to be dismissed. It was pleaded that, in fact, father of respondent No. 1 had not mortgaged the property to deceased Dayaram Laxmidas, but the property was sold by father of respondent No. 1 to deceased Dayaram Laxmidas and, therefore, suit for redemption of mortgage was not maintainable. In the reply, it was further averred that original defendant No. 2, i.e., deceased appellant, having been lawfully inducted as tenant by mortgagees in possession, suit by respondent No. 1 for possession of property in question should be dismissed. No written statement was filed by defendant Nos. 1/2, 1/3 and 1/4.
4. Original defendant No. 2, i.e., deceased appellant, resisted the suit by filing written statement at Ex. 22. It was contended by him, inter alia, that, as the period of mortgage was stipulated to be 99 years, the suit filed by respondent No. 1 was premature and liable to be dismissed. It was also pleaded by him that, as he was lawfully inducted as tenant by the mortgagees in possession, suit for possession, filed by respondent No. 1 should be dismissed.
5. The learned trial Judge framed ten issues for determination at Ex.
24. During the pendency of the suit, the plaintiff, i.e., respondent No. 1 and original defendant Nos. 1/1 to 1/4 submitted a compromise Purshis at Ex. 45 and agreed that the original plaintiff was entitled to redeem the mortgage. In view of the contents of compromise, a preliminary decree for redemption of mortgage was passed by the trial Court at Ex. 48. Thereafter, the suit proceeded only against deceased appellant, who was occupying the mortgaged property as a tenant.
6. On appreciation of evidence, the trial Court came to the conclusion that deceased appellant, who was inducted as tenant by mortgagees in possession, was not entitled to claim tenancy rights nor entitled to retain possession after redemption of mortgage. In view of this conclusion, the learned trial Judge, by judgment and order dated August 27, 1980, passed final decree for redemption of mortgage and directed deceased appellant to hand over possession of the suit property to respondent No. 1.
7. Feeling aggrieved by the said decree, deceased appellant preferred Regular Civil Appeal No. 82 of 1980 in the District Court, Kutch at Bhuj. The learned Assistant Judge, Kutch at Bhuj, who heard the appeal, dismissed the same by judgment and decree dated March 14, 1983, giving rise to the present appeal.
8. The question involved in the Second Appeal is whether the tenant inducted by mortgagee in possession is entitled to claim tenancy rights after redemption of mortgage in absence of authority conferred on the mortgagee to create tenancy beyond the term of mortgage or after redemption of mortgage. The Full Bench of Gujarat High Court in the case of Lalji Purshotlam v. Thacker Madhavji Meghaji (1976) XVII GLR
497. has ruled that on redemption of mortgage, tenant inducted by mortgagee in possession is liable to be evicted unless tenant inducted by mortgagee in possession was accepted as such by the mortgagor. At the time of admission hearing of the Second Appeal, it was stated at the Bar that point decided by the Full Bench was pending for consideration of the Supreme Court in other matters. The Court (Coram : A.S. Qureshi, J.), therefore, admitted the Second Appeal and formulated following question of law for determination:
(1) Whether tenancy rights of a tenant who is inducted by the mortgagee in possession would come to an end on the redemption of the mortgage ?
9. Mr. N.D. Nanavati, learned Senior Advocate, submitted that deceased appellant was lawfully inducted as tenant of the suit shop by the mortgagees in possession and therefore, the impugned decree deserve to be set aside. It was pleaded that, in the mortgage deed Ex. 56, there is a condition that northern door should be kept as it was till the deceased appellant occupied the suit premises, which in turn shows that the subsequent mortgagor had accepted deceased appellant as tenant and, therefore, the Second Appeal should be allowed.
10. Mr. Y.S. Mankad, learned Counsel for the respondents, submitted that the terms of first mortgage deed Ex. 55 do not show that the original mortgagees were authorised to induct appellant as tenant so as to entitle him to continue in possession of the suit premises beyond the term of mortgage or after its redemption and, therefore, there being no substance in appeal, it should be dismissed. In support of his submission, learned Counsel placed reliance on decisions rendered in case of (1) Lalji Purshottam v. Thacker Madhavji Meghaji (1976) XVII GLR 497, (2) Dhami Navnitbhai Amratlal v. Bhagvanlal Chhaganlal and Anr 1978 GLR 420, (3) Jadavji Purshottam v. Dhami Navnithhai Amratlal and (4) Pomal Kanji Govindji and Ors. v. Vrajlal
Karsandas Purohit and Ors. .
11. In my view, there is no substance in any of the contentions raised on behalf of the appellants and the Second Appeal is liable to be dismissed.
12. From the proved facts, there is no manner of doubt that the father of respondent No. 1 had mortgaged suit property to deceased Joshi Dayaram Laxmichand and was entitled to redeem it. Having regard to the contents of Ex. 45, no exception can be taken to decree for redemption of mortgage passed by both the Courts In fact, decree for redemption of mortgage is not subject-matter of challenge in the present appeal.
13. On appreciation of evidence led by the parties, both the Courts have held that deceased appellant was inducted as tenant of the suit shop in S.Y. 1995 by the mortgagees in possession. The plea raised by deceased appellant that he was inducted as tenant of the suit shop prior to subsequent mortgage and was, therefore, entitled to continue in possession of suit shop is negatived by both the Courts.
14. The question, therefore, which deserves determination is whether on redemption of mortgage, deceased appellant was entitled to claim tenancy rights and retain possession of the suit shop? In the case of Lalji Purshottam (supra), the Full Bench has stated legal position emerging from different decisions of the Supreme Court as follows, so far as status of tenant inducted by mortgage in possession is concerned:
(1) The general proposition of law is that no person can confer on another a better title than he himself has and, hence, a mortgagee whose interest lasts only so long as the mortgagee has not been paid off cannot as a mortgagee in possession create a right in the tenant inducted by him to continue in possession beyond the period of redemption, i.e., beyond the termination of the mortgagee's interest. The derivative title from him must ordinarily come to an end with the termination of mortgagee's title.
(2) Under the general rule mentioned above, the mortgagee by creating a tenancy becomes a lessor of the property but his interest as a lessor is co-terminous with his mortgagee interest and by virtue of Section 111(c) of the Transfer of Property Act the duration of the mortgagee interest determines his position as the lessor. The relationship of lessor and lessee cannot subsist beyond the mortgagee's interest unless the relationship is agreed to by the mortgagor or a fresh relationship is created.
(3) To these propositions, an exception is carved out by Section 76(a) of the Transfer of Property Act. Though on the language of Section 76(a) it is an obligation cast on the mortgagee, it has been held that an agricultural lease created by the mortgagee would be binding on the mortgagor even though the mortgage has been redeemed provided it is of such a character for a prudent owner of property would enter into it in the usual course of management. This exception carved out by Section 76(a) has been applied ordinarily to the management of agricultural lands as seldom been extended to urban property so as to tie it up in the hands of lessees or to confer on them rights under special statutes.
(4) When the mortgagor has either in the deed of mortgage or elsewhere stated that the mortgagee with possession may lease the property such authorisation to the mortgagee to let out the property to any other tenant does not amount to any intention to allow expressly tenancy beyond the term of the mortgage and a tenancy beyond the terms of the mortgage with possession under such authorisation cannot create a tenancy which would ensure beyond the term of mortgage.
(5) Once the mortgagee's interest terminates, the relationship of landlord and tenant comes to an end and there being no landlord and no tenant, unless there is something special in the provisions of the particular Rent Restriction Act so far as urban immovable property is concerned, this provisions could not apply and would not confer any protection on the tenant inducted by the mortgagee during the subsistence of the mortgage with possession.
15. In view of the proposition of law laid down by the Full Bench, it is evident that a tenant inducted on the property by a mortgagee with possession, when the tenancy of that tenant is not binding on the mortgagor, after the redemption of the mortgage, is not protected under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
16. Again in the case of Dhami Navnitbhai Amratlal Ors. v. Bhagvanlal Chhaganlal and Anr., 1978 GLR 420, the Division Bench has held that a person cannot transfer better title than he has and as a mortgagee in possession, is under legal obligation to return possession when amount is paid; he cannot create tenancy which would enure beyond redemption of the mortgage. In the said case, tenant inducted by the mortgagee in possession was claiming possession through mortgagee. The Division Bench has held that. Court under Rule 35, Order 21 C.P.C. can remove any such person refusing to vacate the property and tenant inducted by mortgagee in possession is not entitled to protection of Rent Control Act. The decision rendered by the Division Bench in the case of Dhami Navnitbhai Amratlal and Ors. (supra) was challenged before the Supreme Court in Civil Appeal No. 47(N) of 1978. The decision rendered by the Supreme Court in the case of Jadavji Purshollam v. Dhami Navnitbhai Amratlal and Ors. is . The Supreme Court
considered the question whether the lease granted to the tenant-appellant by the mortgagee had the approval or concurrence of the mortgagors, so as to entitle the appellant to claim tenancy rights even as against the mortgagors after they had redeemed the mortgage. In the said case, it was found that terms of mortgage deed authorised mortgagee to give on lease the mortgaged property. The Supreme Court, after construing the terms of deed, held that authorisation given to the mortgagee to give on lease the mortgaged property was not an unconditional and absolute one. It was also found that neither the mortgagors nor the mortgagee could have anticipated the tenancy legislation like Saurashtra Act No. 22 of 1951 being enacted by the Government so as to enlarge the rights of the tenants. In such circumstances, the Supreme Court held that the appellant in the said case was not entitled to contend that mortgagors had given an unrestricted power to the mortgagee to create a tenancy for any length of time and were, therefore, bound to accept the lease transaction even after the redemption of the mortgage deed. The Supreme Court has approved the decision rendered by the Full Bench in the case of Lalji Purshottam (supra) and has held that, after the redemption, the mortgagor is entitled to eject the mortgagee as well as tenant and even tenant need not be made a party to suit filed by the mortgagee or execution application filed by the mortgagor.
17. In the case of Pomal Kanji Govindji and Ors. v. Vrajlal Karsandas Purohit and Ors. , after construing the provisions of Transfer of Property Act, 1882 and Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Supreme Court has ruled that a tenant inducted by a mortgagee in possession loses his rights to retain possession on redemption unless the mortgagor has expressly agreed that he would not seek actual possession from a tenant on redemption and this is especially so in respect of urban properties.
18. The question whether lease created by mortgagee in possession would subsist after the extinction of the mortgage is considered by the Supreme Court in the case of Om Prakash Garg v. Ganga Sahai and Ors. . Therein the appellant who claimed to be a tenant of mortgagee resisted application made by the respondent under Order XXI Rule 35 of the Code of Civil Procedure, 1908, pleading inter alia that being a tenant of the mortgagee, he was entitled to protection of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Executing Court did not sustain objection. In appeal it was held that the appellant being a tenant inducted into possession by the mortgagee was entitled to the protection of Rent Act. Aggrieved, the respondent preferred an appeal to the High Court of Rajasthan. The High Court following the decision of Supreme Court in Sachalmal Parasram v. Mst. Ratanbai , held that the lease was not an act of
prudent management on the part of mortgagee within the meaning of Section 76(a) of the Transfer of Property Act, 1882 and, therefore, the lease could not subsist after the extinction of the mortgage by the passing of final decree for redemption. In appeal by tenant inducted by mortgagee, the Supreme Court has upheld view taken by the High Court in following terms:
After hearing the learned Counsel, we are not persuaded to take a different view than the one reached by the High Court.
19. In Hanumant Kumar Talesara v. Mohan Lal . two
questions namely (1) whether a tenant of a mortgagee can continue as a tenant after redemption of the mortgage decree until he is evicted from the suit premises in accordance with the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and (2) whether the tenancy created in favour of the tenant can be deemed to be an act of ordinary prudence on the part of the mortgagee in managing the property falling within Section 76(a) of the T.P. Act came to be considered by the Supreme Court. On review of earlier decisions of the Supreme Court, it is held that lease given by mortgagee during the subsistence of the mortgage came to an end on the redemption of the mortgage and letting out of the premises to the tenant by the mortgagee is not a prudent act done in the ordinary course of the management.
20. In Carona Shoe Co. Ltd. and Anr. v. K.C. Bhaskaran Nair , while disputed shop building was in possession of a tenant under the owner, the owner mortgaged the disputed building and remaining portions, to first defendant with a direction to receive the rent from the tenant. The mortgagor directed the tenant also to attorn to the mortgagee. The first defendant subsequently in the course of management of the mortgaged property, gave the building on lease to the appellants for a higher rent when the former tenant vacated the same. Subsequently, the owner executed a subsequent mortgage with a direction to subsequent mortgagee to redeem the mortgage. Before the subsequent mortgagee took steps to redeem the mortgage, the owner assigned his equity of redemption to the respondent. The respondent and subsequent mortgagee together as plaintiffs 1 and 2 filed suit to redeem the mortgage of the first defendant and claimed khas possession of the building. The appellants contended that they were tenants of the building inducted by mortgagee and were not liable to be evicted through a decree of Court in a redemption suit without an order under the Kerala Building (Lease and Rent Control) Act, 1965. The trial Court decreed the suit and directed recovery of the possession of the shop building on the ground that the mortgagee could not induct a tenant and give him any right to continue in possession even after the redemption of the mortgage. On appeal by the appellants, the first Appellate Court held that the disputed building was a shop building which was never in the enjoyment of the owner and the mode of enjoyment of the owner of the property was by letting it out and when the mortgagee enjoyed the property in that manner, by letting it out, the person put in possession as a tenant was entitled to continue in possession even after redemption, until evicted under the Rent Control Act. The first Appellate Court further found that the mortgage deed impliedly authorised the mortgagee to let out the building. In that view, the first Appellate Court denied khas possession to the respondent. In appeal, the High Court found that the appellants had not pleaded that they were inducted into possession by mortgagee as prudent act of management. The High Court, therefore, did not sustain the right of the appellants to continue in possession of the property after redemption and held that the provision of Section 76(a) of the Transfer of Property Act, 1882. which is an exception to the general rule, embodied in Section 111(c) applies in appropriate cases ordinarily only to the management of agricultural lands and is seldom extended to the urban property so as to the up in the hands of leasee or to confer on him rights under special statutes. In appeal, on construction of mortgage deed, Supreme Court found that there was nothing in the deed which warranted conclusion that the mortgagee could induct tenants who would continue beyond the term of the existence of the mortgage or who would be given rights even after the expiry of the mortgage. After referring to ratio laid down in cases of (1) Jadavji Purshottam (supra) and (2) Pomal Kanji (Govindji (supra), the Supreme Court has held that the mortgagee has a separate and distinct interest which is wiped out on redemption of the mortgage or expiry of the period of mortgage and the mortgagor on redemption of mortgage gets back his own right and not the right as successor-in-interest of the mortgagee. The Supreme Court has further ruled that the limited estate created in favour of the mortgagee disappears on redemption and consequently all rights emanating from that limited estate also disappear. What is emphasised by the Supreme Court is that the superior right of the mortgagor comes not in the place of the mortgagee but as a result of an independent title and as such the mortgagor cannot be bound by any act or any relationship contracted between the mortgagee and the tenant, unless it is permitted by the mortgage deed. Ultimately, in view of the finding that mortgage deed did not authorise mortgagee to induct tenants to entitle them to continue in possession of the property after the expiry of the mortgage, the Supreme Court dismissed the appeal filed by tenants inducted by the mortgagee.
21. In the light of principles of law enunciated by the Full Bench and Supreme Court in the above referred to decisions, the question whether original plaintiff, i.e., respondent No. 1, or his father who had executed deed Ex. 56 had expressly agreed that they would not seek actual possession from deceased appellant or redemption has to be considered. There is nothing on the record to show that the original mortgagor or respondent No. 1 had accepted rent from deceased appellant after he had been inducted as tenant by the mortgagees in possession. It is not the case of the appellants that there was a direct relationship of landlord and tenant between deceased appellant and the original mortgagor or respondent No. 1. The condition in the mortgage deed to the effect that northern door should be kept as it was till deceased appellant occupied the suit premises is rightly construed by both the Courts not to mean that father of plaintiff had accepted deceased appellant as his tenant. As original appellant was inducted as a tenant by the mortgagees in possession, for convenience of deceased appellant, it was stipulated that the northern door should be kept as it was till he occupied the suit premises. The so-called concession made by the mortgagor cannot be construed as mortgagor having accepted deceased appellant as his tenant. The words of the mortgage deed Ex. 55 do not clearly and indubitably disclose the intention to allow expressly the creation of a tenancy at all. In absence of such an intention, it cannot be said that deceased appellant was accepted as tenant by mortgagor or that he was entitled to tenancy rights beyond the term of the mortgage or after its redemption. In fact, creation of lease by mortgagee was not an act of prudent management within the meaning of Section 76(a) of the Transfer of Property Act, 1882 and therefore, the lease could not subsist after the extinction of mortgage. There is no provision in the mortgage deed Ex. 56 nor any evidence is led to indicate approval or concurrence of original mortgagor ratifying the acts of the mortgagees to induct tenant who would continue to be in possession after the redemption or at the end of the mortgage. The first Appellate Court, which is final Court of fact, has rightly held that in the written statement it was never pleaded by deceased appellant that he had become direct tenant of the mortgagor either because of lapse of some time between first and second mortgage or because of condition mentioned in the mortgage deed to the effect that the northern door was to be kept as it was till he occupied the suit premises. The question whether deceased appellant was accepted as tenant by the original mortgagor and/or original plaintiff or not is essentially a question of fact and not liable to be interfered with in second appeal.
21.1. The finding of fact recorded by both the Courts is based on detailed consideration of the evidence on record. The finding that deceased appellant was not entitled to retain possession of the suit premises on redemption of the suit property is neither unreasonable nor perverse in view of authoritative pronouncement of law on the subject by the Supreme Court. It is well settled that in second appeal, jurisdiction of the High Court is confined to substantial questions of law between the parties. When all questions at issue had to be tried in the light of oral and documentary evidence as well as surrounding circumstances, if the Appellate Court records a definite finding, it is not open to the High Court to attempt to re-appreciate that evidence. On the facts and in the circumstances of the case, 1 am of the view that the substantial question of law formulated by the Court at the time of admission of second appeal is already answered against the original appellant by a series of judgments of the Supreme Court and he was not entitled to claim tenancy rights as he was inducted as tenant by mortgagees in possession. Therefore, the substantial question of law framed by the Court is answered against the appellants and in affirmative.
22. In view of the above discussion, I do not find any substance in the Second Appeal and the Second Appeal is liable to be dismissed. The Second Appeal, therefore, fails and is dismissed. There shall be no order as to costs. Stay as to possession, if any, granted in favour of the appellant is hereby vacated.