( 1 ) THE plantiff in OS. 640 of 1972 on the file of the Prl First Munsiff, Mysore, is the appellant in this second appeal. He instituted the said suit for redemption of an usufructuary mortgage created by him under the mortgage deed dt. 30-4-1967 in favour of the defendant for a sum of Rs. 1500. ( 2 ) THE defendant did not dispute the right of the plaintiff to redeem the mortgage. The principal contention urged by him before the trial Court was that since he was a tenant in possession of the mortgaged property, which happened to be a building, on a monthly rent of Rs. 15 prior to the date of the mortgage, he was not bound to surrender the possession of the building on the redemption of the mortgage as the said tenancy which was only in abeyance during the subsistence of the mortgage would revive after redemption. The trial Court upheld the contention of the defendant and passed a decree for redemption of the mortgage with the condition that the plaintiff would not be entitled to the possession of the premises in question. ( 3 ) IT also held that in the event of the above finding being reversed by the appellate Court, the plaintiff would be entitled to damages at the rate of Rs. 30 per month from the date on which the mortgage amount was deposited into the Court in accordance with the preliminary decree. Accordingly he passed a preliminary decree in the suit. Aggrieved by the said preliminary decree, the plaintiff preferred an appeal in RA. 30 of 1974 on the file of the Civil Judge, Court of Small Causes, Mysore. The lower appellate Court affirmed the decree of the trial Court refusing the prayer of the plaintiff for actual possession and damages. It, however, decreed that the mortgage stood redeemed as the plaintiff had deposited the mortgage money on 18-9-1972 and directed the defendant to return the mortgage deed to the plaintiff with the endorsement of satisfaction. Aggrieved by the decree of the lower appellate Court the plaintiff has filed this second appeal. ( 4 ) THE principal question which arises for consideration in this appeal is whether the Courts below were right in refusing to make a decree for possessiqn of the mortgaged property in the facts and circumstances of this case. Aggrieved by the decree of the lower appellate Court the plaintiff has filed this second appeal. ( 4 ) THE principal question which arises for consideration in this appeal is whether the Courts below were right in refusing to make a decree for possessiqn of the mortgaged property in the facts and circumstances of this case. The contention of Sri V. Tarakaram, learned Counsel for the appellant is that in view of the recitals found in the mortgage deed the Courts below shpuld have held that there was an yielding up or implied surrender of the tenancy rights by the defendant on the execution of the mortgage deed and that thereafter the possession of the defendant was that of a mortgagee and not that of a tenant. ( 5 ) IT is not disputed that the defendant was in occupation of the mortgage premises as a tenant prior to 30-4-1967 on which date the mortgage deed was executed. The mortgage in question is an usufructuary mortgage. Two important recitals in the mortgage deed which require to be noticed at this stage are : (a) * * (A free translation into English of the above recital is as follows :"since you are in possession of the schedule property as a tenant, I have handed over the possession of the said property to you as an usufructuary mortgagee)" (b) (A free translation into English of the above recital is as follows :" As long as you enjoy the schedule property as an usufructuary mortgagee you will not have interest and I would not have rent)". ( 6 ) A period of 3 years is prescribed for the redemption of the mortgage. The plaintiff has undertaken to effect repairs of the premises during the subsistence mortgage. He has ajso undertaken under the deed that in the event of the defendant effecting repairs to the mortgage property, on the plaintiff committing default in doing so, to reimburse the cost of repairs. The question whether there has been an implied surernder of the tenancy has to be decided on the basis of the recitals in the deed. The true principle applicable to a case of this nature has been enunciated by the Supreme Court in Shah Mathuradas Maganlal and Co v. Nagappa Shankarappa malag, AIR1976 SC. 1565. The question whether there has been an implied surernder of the tenancy has to be decided on the basis of the recitals in the deed. The true principle applicable to a case of this nature has been enunciated by the Supreme Court in Shah Mathuradas Maganlal and Co v. Nagappa Shankarappa malag, AIR1976 SC. 1565. The building which was the subject matter of that case was situated in Sanglj where there were statutory restrictions on the eviction of tenants. In that case a similar contention was urged under more or less similar circumstances. Dealing with it, the Supreme Court observed at para 19 as follows :" A surrender under Cls (e) and (f) of S. 111 of the Transfer of property Act, is any yielding up of the term of the lessee's interest to him who has the immediate reversion of the lessor's interest. It takes effect like a contract by mutual consent on the lessor's acceptance of the act of the lessee. The lessee cannot, therefore, surrender unless the term is vested in him; and the surrender must be to a person in whom the immediate reversion expectant on the term is vested. Implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. If the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of posssession by the lessee and taking over possession by the lessor. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. Whether this has occurred as a question of fact. In the present case if the mortgagor was not able to redeem the appellant mortgagee was to enjoy the property in accordance with the terms of the mortgage and also to sell the property for recovery of debts. This feature shows thai the appellant surrendered the tenancy from 7th Novr, 1953. " ( 7 ) IN the instant case it is seen that the parties took into consideration at the time of the execution of the mortgage deed that the defendant was in possession of the property as a tenant. This feature shows thai the appellant surrendered the tenancy from 7th Novr, 1953. " ( 7 ) IN the instant case it is seen that the parties took into consideration at the time of the execution of the mortgage deed that the defendant was in possession of the property as a tenant. Having done so it was agreed that the possession of the defendant would be that of an usufructuary mortgagee after the execution of the deed. That is clear from the first recital extracted above. It is also seen from the second recital extracted above that the possession of the defendant after the execution of the mortgage deed was that of a mortgagee. From these two recitals it is clear that the defendant took over the possession of the property as a mortgagee on the execution of the deed after surrendering his possession as a tenant. As observed by the Supreme Court in such a case it is not necessary that there should be a physical handing over of the possession by the tenant in favour of the landlord and then redelivery of the same by the mortgagor in favour of the mortgagee. In view of the above, the Courts below were in error in holding that on the redemption of the mortgage the tenancy rights of the defendant would revive and in declining to make a decree for possession in favour of the plaintiff on the redemption of the mortgage. ( 8 ) THE trial Court has held that the damages which would be payable by the defendant to the plaintiff on his depositing the mortgage money would be Rs. 30 per month. The learned Counsel for both the parties agreed that it might be reduced to Rs. 15 per month and the defendant might be asked to pay at the rate of Rs. 15 per month by way of damages to the plaintiff from the date of the deposit of the mortgage money into the trial Court. The plaintiff deposited the mortgage money into the Court on 18-9-1972. The defendant is liable to pay to the plaintiff damages for use and occupation at the rate of Rs. 15 per month from that date until the possession of the premises is handed over by him to the plaintiff. It is stated that the defendant has withdrawn the mortgage money deposited by the plaintiff from the trial Court. The defendant is liable to pay to the plaintiff damages for use and occupation at the rate of Rs. 15 per month from that date until the possession of the premises is handed over by him to the plaintiff. It is stated that the defendant has withdrawn the mortgage money deposited by the plaintiff from the trial Court. In the result, in substitution of the decrees of the Courts below a decree is passed as follows : (1) The mortgage stands redeemed since the mortgage money has been deposited into the trial Court and withdrawn by the defendant: (2) the defendant shall deliver possession of the suit premises to the plaintiff forthwith; and (3) the defendant shall pay the plaintiff damages at the rate of Rs. 15 per month from 18-9-1972 till the date of delivery of the possession of the premises. In the circumstances of this case the parties shall bear their own costs in all the three Courts. --- *** --- .