JUDGMENT S.N. Dwivedi, J. - This appeal has been referred to us for decision by a learned Single Judge on account of conflict between Hardei Vs. Wahid Khan and Another, AIR 1954 All 16 and Kamlakar and Company Vs. Gulamshafi Imambhai Musalman, AIR 1963 Bom 42 . 2. The determinative facts are these : The accommodation in dispute is subject to the provisions of the U.P. (Temporary) Control of Rent and Eviction Act (hereinafter called the Act). It was the subject of a usufructuary mortgage. The mortgagor applied for redemption of the mortgage. A decree was passed Under Order XXXIV, Rule 7, CPC in favour of the mortgagor. In execution Habib, the Appellant, made an objection. He said that he was a tenant from the mortgagee and that he was not liable to ejectment in execution. The execution Court upheld his objection and allowed delivery of symbolical possession over the accommodation to the mortgagor. The mortgagor went in appeal. The first appellate Court set aside the judgment of the execution Court and directed the ejectment of Habib as well. 3. It seems to us that before the learned Single Judge Learned Counsel for Habib shifted his case frail the one set up by him in the lower Court. The argument before the learned Single Judge was that on redemption Habib did not become a trespasser but was a tenant of the mortgagor and was not liable to eviction in view of the provisions of Section 3 of the Act. In support of his argument he relied upon Hardei's (supra) case. On the other hand, the mortgagor urged that Habib became a trespasser on redemption and did not derive any protection from the provisions of Section 3. In support of his argument he relied on Kamlakar's (supra) case. 4. We shall leave this central point here for the time being and at once dispose of some minor points in the case. It is argued on behalf of Habib that even if his tenancy determined on redemption of the mortgage, he cannot be evicted from the accommodation because he is protected by Section 3 of the Act. It is urged that the word 'tenant' in Section 3 includes not only a person whose tenancy has not determined but also a person whose tenancy has determined by any of the modes provided for in Section 111 Transfer of Property Act. It is urged that the word 'tenant' in Section 3 includes not only a person whose tenancy has not determined but also a person whose tenancy has determined by any of the modes provided for in Section 111 Transfer of Property Act. It is difficult to accept this broad argument. Although Section 3 is expressed in a general way, it appears to us that it prohibits the institution of a suit for ejectment of a tenant by a landlord. The words 'landlord' and 'tenant' are defined in Section 2 of the Act. 'Landlord' means a person to whom rent is payable and 'tenant' means the person by whom rent is, or, but for a contract, express or implied, would be payable for any accommodation. The significance of Section 3 should be grasped in the light of Sections 14 and 15 of the Act. Section 14 provides that no decree for the eviction of a tenant from any accommodation passed before the date of commencement of this Act shall, in so far as it relates to the eviction of such tenant, be executed against him as long as this Act remains in force, except on any of the grounds mentioned in Section 3. Section 15 provides that in all suits for eviction of a tenant from any accommodation pending on the date of the commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 3. We think that the word 'tenant' in these two sections has been used in a broad sense. It means also a person whose tenancy has already been determined. As the Act is designed to prevent the eviction of tenants on account of scarcity of accommodation in certain areas, the word 'tenant' in Section 3 should be construed to include not only a person who is a tenant for the time being but also a person whose tenancy has already been determined by the landlord. However, it appears to us that this word cannot be given such a wide meaning as to include a tenant of the mortgagee whose tenancy has come to an end on redemption of the mortgage, for he was at no point of time a tenant of the mortgagor. The mortgagor was never his landlord. He would be neither the present nor the former tenant of the mortgagor. 5. The mortgagor was never his landlord. He would be neither the present nor the former tenant of the mortgagor. 5. If the word 'tenant' in Section 3 is construed to comprehend the tenant of the mortgagee, whose tenancy has come to an end on redemption of the mortgage, the mortgagor will be harshly affected in a case where the mortgagee has let out the accommodation on uneconomic rent. The Act contains no provision enabling the mortgagor to enhance the rent or to secure even the annual reasonable rent. The counsel referred us to Sub-section (4) of Section 5. But that section will not help the mortgagor in his plight. It enables the landlord to obtain a declaration that the annual reasonable rent of an accommodation is inadequate. A construction which imposes unnecessary hardship on a person for no fault of his own should not be easily accepted. We have also the decisions in Bhaiya Punjalal Bhagwanddin Vs. Dave Bhagwatprasad Prabhuprasad, AIR 1963 SC 120 and Anand Nivas (Private) Ltd. Vs. Anandji Kalyanji Pedhi and Others, AIR 1965 SC 414 in support of our view. 6. Habib was a party to the mortgagor's (suit) for redemption. He did not enter appearance and the suit proceeded ex parte against him. Accordingly, it is urged on behalf of the mortgagor that Habib cannot resist his eviction in execution. It appears to us that it was not incumbent on Habib to set up a defence in the suit. The suit was for redemption of the mortgage. The mortgagor claimed only the relief of redemption of the mortgage. No relief was claimed for ejectment of Habib from the mortgaged property. The decree for redemption was made Under Order XXXIV, Rule 7 Code of Civil Procedure. It does not direct the ejectment of Habib from the mortgaged property. In these circumstances we think that Habib can object to his ejectment now. 7. Coming back to the central point, in Hardei's (1) case the mortgagee had let cut an accommodation. The tenancy was from month to month. The mortgagor redeemed the mortgage. Thereafter he instituted a suit for ejectment of the mortgagee's tenant, calling him a trespasser. The main plea of the tenant was that he continued to be the tenant of the accommodation even after redemption. The tenancy was from month to month. The mortgagor redeemed the mortgage. Thereafter he instituted a suit for ejectment of the mortgagee's tenant, calling him a trespasser. The main plea of the tenant was that he continued to be the tenant of the accommodation even after redemption. The Division Bench, relying on Section 76(a) of the Transfer of Property Act, held that the tenancy from month to month was created by the mortgagee as a person of ordinary prudence and that accordingly on redemption the tenancy did not terminate. 8. The pattern of facts in Kamlakar's (2) case bears resemblance to the pattern of facts in Hardei's (1) case. Relying on Clause (c) of Section 111, Transfer of Property Act, the learned Judges held in that case that the tenancy determined on redemption. Section 111(c) provides that a lease of immovable property determines when 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. They further held that the tenant of the mortgagee could not, after redemption, seek protection of the provisions of the Bombay Rent Act (which is akin to the Act). They did not agree with the decision in Hardei's (1) case. They drew support for their opinion from certain observations of the Supreme Court in Mahabir Gope and Others Vs. Harbans Narain Singh and Others, AIR 1952 SC 205 . 9. The facts of Mahabir Gope's (5) case are essentially different. There it was found that the terms of the mortgage prohibited the mortgagee from making any settlement of tenants on the land. Accordingly, Section 76(a) Transfer of Property Act did not come into action in that case. However, Sri Justice Chandrasekhar Iyar made two general observations. The learned Judge observed: 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.... It follows that he may grant leases not extending beyond the period of the mortgage any leases granted by him must come to an end at redemption. A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee.... It follows that he may grant leases not extending beyond the period of the mortgage any leases granted by him must come to an end at redemption. He further added: A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is a different matter altogether. It is an exception to the general rule. Mahabir Gope's (5) case was noticed in a subsequent decision of the Supreme Court-- Harihar Prasad Singh and Another Vs. Must. of Munshi Nath Prasad and Others, (1956) 1 SCR 1 . It may be noticed that two of the learned Judges who participated in Mahabir Gope's (supra) decision also participated in the decision in Harihar Prasad's (supra) case. The judgment was delivered by Sri Justice Venkatarama Ayyar. An argument was advanced in Harihar Prasad's (supra) case on behalf of the tenants that u/s 76 Transfer of Property Act the mortgagee had the power to induct them on the land for purposes of cultivation and that such a transaction would be binding on the mortgagor. While dealing with this argument, Sri Justice Venkatarama Ayyar observed: The law is that a person cannot confer on another any right higher than what he himself possessed and therefore, a lease created by a usufructuary mortgagee would normally terminate on the redemption of the mortgage. Section 76(a) enacts an exception to this rule. If the lease is one which could have been made by the owner in the course of prudent management, it would be binding on the mortgagor, notwithstanding that the mortgage has been redeemed. Whatever doubts may have arisen regarding the status of a tenant of the mortgagee after redemption of the mortgage from the decision in Mahabir Gope's (5) case, this observation clearly supports the view that where the mortgagee has let out in the course of prudent management, the tenancy would enure after redemption of the mortgage and that it would bind the mortgagor. We think that it would follow that he would become the tenant of the mortgagor. We think that it would follow that he would become the tenant of the mortgagor. This observation was approved by the Supreme Court in Asa Ram v. Mst. Ram Kali 1958 SCR 986 . In this case Sri Justice Venkatarama Ayyar reiterated: The law undoubtedly is that no person can transfer property so as to confer on the transferee a title better than what he possesses. Therefore, any transfer of the property mortgaged by the mortgagee must cease when the mortgage is redeemed. Section 76(a) T.P. Act provides that a mortgagee in possession 'must manage the property as a person of ordinary prudence would manage it, if it were his own'. Though on the language of the statute, this is an obligation cast on the mortgagee, the authorities have held that an agricultural lease created by him would be binding on the mortgagor even though the mortgage has been redeemed, provided it is of such a character that a prudent owner of property would enter into it in the usual course of management. This being in the nature of an exception, it is for the person who claims the benefit thereof, to strictly establish it. We are not unmindful of the fact that in these two decisions the mortgagees created agricultural tenancies, while we are concerned with the case of a tenancy of an accommodation governed by the Act. But this fact should not, in our judgment, make any difference. Section 76(a) Transfer of Property Act is in terms not restricted to an agricultural tenancy. It is expressed in wide words. In Collector of Basti v. Sarnam Charak 8 ALJ 802, Sri Justice Piggot took this view. This case was followed in Hardei's (supra) case. Following Asa Ram's (supra) case, the Punjab High Court has held in Mathra Puri and Another Vs. Hukam Chand and Others, AIR 1965 P&H 231 that, where a tenant is inducted on the land by a mortgagee as a prudent owner of property in the usual course of management, his tenancy does not determine on redemption of the mortgage. In sum, in view of the decisions of the Supreme Court in the aforesaid two cases it should now be held that a tenancy created by the mortgagee does not come to an end on redemption of the mortgage provided the letting was done by the mortgagee "as a person of ordinary prudence". In sum, in view of the decisions of the Supreme Court in the aforesaid two cases it should now be held that a tenancy created by the mortgagee does not come to an end on redemption of the mortgage provided the letting was done by the mortgagee "as a person of ordinary prudence". This result follows from the provisions of Section 76(a) Transfer of Property Act. Further, Section 76(a) is in the nature of an exception to the provisions of Section 111(c) Transfer of Property Act. In the result, whether the mortgagee has let out as a person of ordinary prudence as contemplated by Section 76(a), the interest of the lessee would not determine on redemption of the mortgage u/s 111(c). 10. Counsel for the mortgagor referred us to Prabhu Vs. Ramdev and Others, AIR 1966 SC 1721 . This Case notices and applies the dicta of Sri Justice Chandrasekhar Aiyar in Mahabir Gope's (supra) case. It does not cast doubt on the observations of Sri Justice Venkatarama Ayyar in Harihar Pd.'s (supra) and Asa Ram's (supra) cases. 11. To succeed in this case, Habib has to establish two points : (1) under the mortgage the mortgagee was not prohibited from letting (see Mahabir Gope's (5) case); (2) the mortgagee, as a person of ordinary prudence, let out the accommodation to him. On the second point the Court will look to the duration of the tenancy, the fairness of rent at the time of letting and the bonafides of the mortgagee. 12. The burden of showing that the letting was made by the mortgagee as a person of ordinary prudence will be on Habib. But he did not take this kind of plea at all in the Courts below. He simply relied upon Hardei's (1) case. He was not at fault there. That decision was binding on the courts below. It seems to us that it would be fair and proper in the circumstances of this case to frame certain issues and ask the execution Court to send its findings thereon. The execution Court should at the outset ask Habib to file a statement of his case; it should then ask the mortgagor to file a statement in reply. Thereafter it should give an opportunity of adducing evidence, both oral and documentary, to both the parties on the following issues: 1. The execution Court should at the outset ask Habib to file a statement of his case; it should then ask the mortgagor to file a statement in reply. Thereafter it should give an opportunity of adducing evidence, both oral and documentary, to both the parties on the following issues: 1. Whether the mortgagee was prohibited under the mortgage from letting the accommodation? 2. Whether the mortgagee had let out the accommodation in the course of management of the mortgaged property as a person of ordinary prudence would have done if it were his own? 13. We direct that the trial Court should send the findings on the issues indicated above to this Court within three months of the receipt of the record of the case. The file of the execution Court be sent back forthwith.