Bansidhar v. Iv Additional District Judge — 1990 DIGILAW 162 (ALL)

JUDGMENT M.L.Bhat, J. 1. The petitioner challenges the order of respondent No. 1 whereby he has upheld the order of the respondent no. 2. 2. The facts giving rise to this petition can be put in a breif compass. The petitioner claims to be a tenant of one Tej Bahadur who was mortgagee of some residential property in Bareilly. The mortgagor, Chandra Bahadur, Respondent no. 3, herein seems to have mortgaged his residential property to Tej Bahadur (since dead), who is represented by respondents no. 4 and 5 in the writ petition, in lieu of Rs. 3000/-. The mortgage deed was executed on 12-5-1972 and the period of mortgage was three years. The petitioner avers that the mortgagor became tenant of the mortgagee. The mortgagee, therefore, had filed a suit for ejectment and recovery of arrears of rent against the mortgagor and against the petitioner, who was held by the trial court as sub-tenant of the property. The petitioner tenant thereafter filed a civil revision No. 178 of 1976, which was decided on the basis of a compromise on 15-2-1977 by the court of the District Judge, Bareilly. The petitioner was held to be a tenant and not a sub-tenant of the mortgagor with effect from October, 1975. The relief of ejectment was given up. The mortgagor was not a party to the compromise, which was arrived at between the mortgagee and the petitioner. 3. The mortgagor, Chandra Bahadur, filed an application under section 83 of the Transfer of Property Act in the Court of Munsif City, Bareilly against the mortgagee and the petitioner. The said application came to be registered as Misc. Case no. 93 of 1979. The mortgagor prayed that Rs. 3000/- be got deposited and the mortgagee be directed to hand over vacant possession of the mortgaged property to the mortgagor. The mortgagee contended in the trial court that he was ready to deliver possession to the mortgagor provided he was given Rs. 3000/- which he had advanced as mortgage money to the mortgagor The petitioner-tenant seems to have contested the suit on various grounds. The application under Section 83 of the Transfer of Property Act was, however, allowed and a direction was given to deliver vacant possession of the mortgaged property to the mortgagor. 4. 3000/- which he had advanced as mortgage money to the mortgagor The petitioner-tenant seems to have contested the suit on various grounds. The application under Section 83 of the Transfer of Property Act was, however, allowed and a direction was given to deliver vacant possession of the mortgaged property to the mortgagor. 4. Against the aforesaid order of the Munsif a revision was taken before the District Judge which came to be decided by the VI Additional District Judge, Bareilly. The revision was dismissed and the order of the trial court allowing the application under Section 83 of the Transfer of Property Act filed by the mortgagor was upheld. AGAINST the said order the present writ petition is filed, inter-alia, on the following grounds :- (a) That the petitioner-tenant was entitled to the benefits of Section 76 (a) of the Transfer of Property Act and he is entitled to continue his possession even after the redemption of mortgage. (b) That the petitioner was declared as tenant by the competent Civil Court in another litigation and, therefore, that finding operates as res judicata in an application under Section 83 of the Transfer of Property Act (c) That the application under Section 83 of the Transfer of Property Act was not a suit, therefore, delivery of possession of the mortgaged property could not have been ordered by the courts below in favour of the mortgagor. (d) That the application under Section 83 of the Transfer of Property Act was not maintainable because the payment was not made within the period for which mortgage had been created. The order of Court below is said to be illegal. In his counter-affidavit the mortgagor has stated that the petitioner was a tenant of the mortgagee. It is stated that the mortgagor was in possession of the mortgaged property till June, 1973 and when he vacated the occupation of the mortgaged property, the same was let out to the petitioner by the mortgagee Tej Bahadur. It is stated that the petitioner was never sub-tenant of the mortgagor. Other assertions raised by the petitioner are denied. 5. Learned counsel, for the petitioner Sarvasri R. S. Saxena and Y. S. Saxena argued the case at great length before me. It is stated that the petitioner was never sub-tenant of the mortgagor. Other assertions raised by the petitioner are denied. 5. Learned counsel, for the petitioner Sarvasri R. S. Saxena and Y. S. Saxena argued the case at great length before me. It was contended by them that the application under Section 83 of the Transfer of Property Act tiled by the mortgagor before the Munsif's Court should not have been allowed because the mortgagor had made a conditional offer for deposit of the mortgage money. The offer should have been unconditional. My attention was drawn to section 83 of the Transfer of Property Act which enables a mortgagor to deposit the mortgage money in Court and authorises the Court to direct the mortgagee to deliver possession of the mortgaged property to the mortgagor or such other person as the mortgagor may nominate after observing certain procedural requirements. On a true construction of section 83 Transfer of Property Act the requirements of the said section appear to be as under : (i) The mortgagor has a right to deposit the mortgage money at any time after it had become due and before a suit for redemption of mortgaged property is barred in a Court in which such a suit might have been instituted. (ii) On deposit of mortgage money in accordance with section 83 of the Transfer of Property Act the court is bound to issue a notice to the mortgagee and the mortgagee is given a choice to accept the money so deposited. If he accepts the money he has to deposit the mortgage deed and all documents in his possession or power relating to the mortgaged property which are to be delivered to the mortgagor. (iii) Where the mortgagee is in possession of the mortgaged property the Court can ask him to deliver possession of the mortgaged property to the mortg gor at the cost of the mortgagor or such other person as the mortgagor may direct. 6. From the above discussion it appears that the mortgagor has to make a deposit of the mortgage money without any condition and if he deposits the mortgage money conditionally the mortgagee has a right to raise objection to the conditional deposit of the mortgage money. The mortgagee may accept the mortgage money even if the mortgagor had made the deposit conditionally. The mortgagee may accept the mortgage money even if the mortgagor had made the deposit conditionally. The objection regarding deposit of mortgage money can be raised only by the mortgagee because he has to take the said money. He may accept receipt of the said money conditionally or unconditionally. The objection about conditional deposit, therefore, is available to the mortgagee alone and to none else. In the present case on facts it is proved that the mortgagee did not raise any objection about the deposit of mortgage money being conditional. He had prayed for deposit of mortgage money whereupon he was ready to deliver vacant possession of the house to the mortgagor. The petitioner, who is a tenant, cannot raise this objection in the writ petition for the first time for two reasons. In the first place, he has no right under law to raise any objection, which was to be raised by the mortgagee, in the proceedings under Section 83 of the Transfer of Property Act. In the second place, the mortgagee had stated before the Court below that he was ready to deliver possession provided he was given Rs. 3000/-. Therefore it is too late in the day for the petitioner-tenant to raise any objection regarding validity of the deposit of mortgage money. He has no locus standi to raise such an objection nor is he in the facts and circumstances of the case entitled to raise such an objection. Therefore, the contention of the learned counsel for the petitioner-tenant in this regard is without any basis and the same is repelled. That no suit was filed by the mortgagor against the mortgagee and the petitioner for recovery of possession of the mortgaged property, contended the petitioner and therefore, delivery of possession could not have been made by the court below. This argument is self-defeating. From the reading of section 83 of the Transfer of Property Act after the deposit of mortgage money is made by the mortgagor and after the notice is served on the mortgagee the trial court is competent to direct delivery of possession of mortgaged property in favour of the mortgagor. Therefore, the requirement of filing a regular suit seems to have been dispensed with by the legislature and in a summary proceedings under section 83 of the Transfer of Property Act the order regarding delivery of possession is permitted to be made. Therefore, the requirement of filing a regular suit seems to have been dispensed with by the legislature and in a summary proceedings under section 83 of the Transfer of Property Act the order regarding delivery of possession is permitted to be made. If law permits this course to be adopted, the petitioner cannot insist that a regular civil suit should have been brought by the mortgagor. Moreover, the proceedings under section 83 of the Transfer of Property Act have become final. The mortgagee has not challenged the order of the Munsif or the Additional District Judge. Therefore, the tenant claiming under the mortgagee cannot be permitted to raise this objection which under law is not available to him. The contention of the petitioner in this regard also fails. 7. It is true that the petitioner was held as a tenant of the mortgaged property. The courts below have also held him to be a tenant. His status has not been altered by any order that was passed in the proceedings instituted under section 83 of the Transfer of Property Act. He could certainly remain in possession as tenant during the currency of the mortgage. His contention is that even after the redemption of the mortgage, he is entitled to remain in possession. This is the only point, which requires detailed consideration by this Court. 8. There is nothing on record to show that the proceedings under section 83 of the Transfer of Property Act instituted by the mortgagor were not maintainable. The petitioner has under some mistaken advice stated that the said proceedings were brought beyond time. The mortgage had to remain operative for three years. Time would, therefore, run at the expiry of the period of mortgage for recovery of possession of the mortgaged property. The objection regarding non-maintainability of the proceedings is, therefore, over-ruled. The only point that falls for consideration by this Court is as to whether the petitioner could remain in possession of the property as tenant even after the redemption of the mortgage of his rights as tenant came to an end with the redemption of the mortgage. 9. The learned counsel for the petitioner have relied on a Full Bench authority of this Court Tajammul Husain v. Mir Khan, AIR 1974 Allahabad 234. The facts of that case were that one Tajammul Husain, mortgaged his house with the mortgagees, who were put in possession. 9. The learned counsel for the petitioner have relied on a Full Bench authority of this Court Tajammul Husain v. Mir Khan, AIR 1974 Allahabad 234. The facts of that case were that one Tajammul Husain, mortgaged his house with the mortgagees, who were put in possession. The mortgagees let out the permises to a tenant after obtaining a rent deed from him. In the year 1963 mortgagor Tajammul Husain filed a suit No. 163 of 1963 for redemption of mortgage against the mortgagees. The suit was decreed. Tajammul Husain could only get symbolic possession of the premises. He filed another suit against the tenant and few others, who were carrying on business in the mortgaged property with him in partnership. He contended that after the redemption of mortgage status of the tenant was that of a trespasser and he was liable to be ejected. The Full Bench on consideration of various authorities held that the general rule was that if the mortgage was with possession, the rights of all those persons, who were holding under the mortgagee, would also get extinguished on the redemption of the mortgage. This rule was made subject to one exception, which is incorported in section 76 (a) of the Transfer of Property Act. The exception is that if during the subsistence of the mortgage, the mortgagee, like an ordinary prudent man, lets out the mortgaged premises and enters into a bona fide transaction in connection therewith, in that event the rights of such a person admitted to tenancy would not get automatically extinguished on redemption of the mortgage. The person so let in, would be entitled to continue in occupation of the premises as a tenant of the mortgagor after redemption. The principle, behind section 76 (a) of the Transfer of Property Act, was held to be that if the mortgagor had remained in possession and let out the property himself to a tenant and instead of the mortgagor, the mortgagee, who came in his place, did the same, it will be considered binding on the mortgagor as well. The rights of the tenant on redemption of mortgage would not lapse. The provisions of section 76 (a) of the Transfer of Property Act were made applicable to urban immovable property Act also. 10. The general rule is that a mortgagee cannot confer a better title on tenant than he himself has. The rights of the tenant on redemption of mortgage would not lapse. The provisions of section 76 (a) of the Transfer of Property Act were made applicable to urban immovable property Act also. 10. The general rule is that a mortgagee cannot confer a better title on tenant than he himself has. The mortgagee cannot create an interest in the mortgaged property in favour of a tenant which will continue beyond the period of redemption. The mortgagee is bound to redeem the property in the same shape in which the possession of the property was taken over by him. He cannot create any clog on the equity of redemption. If a tenant is allowed to remain in possession beyond the redemption of mortgage, the mortgagor may not get the property in the same shape in which he had mortgaged it to the mortgagee. He cannot get actual physical possession because the tenancy created by the mortgagee would be a hurdle in his way to be relegated to the same position which obtained at the inception of the mortgage. The mortgagee during the subsistence of the mortgage cannot, therefore, act to the detriment of the mortgagor's interest, which would prevent the mortgagor to obtain actual possession of the mortgaged property at the time of redemption of the mortgage. On the basis of section 76 (a) of the Transfer of Property Act it was held by the Full Bench that if the mortgagee in possession manages the property as a person of ordinary prudence, then the tenant inducted by him during the currency of the mortgage may get protection against the eviction on the redemption of mortgage. Section 76 of the Transfer of Property Act lays down liabilities of mortgagee in possession. It says that when during the continuance of the mortgage the mortgagee takes possession of the mortgaged property- (a) he must manage the property as a person of ordinary prudence would manage it if it were his own. This provision of section 76 of the Transfer of Property Act was held applicable in relation to agricultural land only but the Full Bench case reported in AIR 1974 All. 234 (Supra) has made this provision applicable to urban property also. This provision of section 76 of the Transfer of Property Act was held applicable in relation to agricultural land only but the Full Bench case reported in AIR 1974 All. 234 (Supra) has made this provision applicable to urban property also. So if for proper management of the property mortgagor also would have inducted a tenant and it was necessary to induct a tenant for the management of the property, the mortgagee could exercise such a right and it will be deemed as if it was exercised by the mortgagor himself. No hard and fast rule can be laid down as to how a person of ordinary prudence should manage the mortgaged property. Prudent management of the property would also always depend on the nature of the property and on the facts and circumstances surrounding each mortgaged property." Therefore, the mortgagee can prove in proceedings under section 83 of the Transfer of Property Act that he had inducted a tenant for the better management of the property as a person of ordinary prudence. He can also show that for better management of the property or for preserving the property induction of a tenant in the mortgaged property was necessary. He can also show that the mortgagor also would have done the same thing had he been himself in possession of the mortgaged property. The mortgagee can also show the authority or permission of the mortgagor with regard to induction of the tenant. These are only illustrations and cannot be exhaustive inasmuch as every case shall have to be decided on its own facts and circumstances. The authority reported in 1974 Alld. 234 (FB) (supra) necessarily lays down that the mortgagee or a tenant claiming through mortgagee are entitled to show to the Court which deals with the redemption of mortgage that by inducting a tenant in the mortgaged property the mortgagee had acted as a person of ordinary prudence. There must, therefore, be evidence of the mortgagee's prudenee which necessitated him to induct a tenant in the mortgaged property for the better management of the mortgaged property in the interest of the mortgagor. If that evidence is not there, it cannot be said that the mortgagee had acted as a prudent man of ordinary prudence by inducting a tenant in the mortgaged property during the currency of mortgage. If that evidence is not there, it cannot be said that the mortgagee had acted as a prudent man of ordinary prudence by inducting a tenant in the mortgaged property during the currency of mortgage. The onus is very heavy on the mortgagee or the tenant claiming through him as he has to establish that the mortgagee had acted like an ordinary prudent person and he had inducted a tenant for it was essential to induct a tenant in the interest of the mortgagor also. The Full Bench authority of the Allahabad High Court does not say anything beyond this. 11. IN the present case the statement of mortgagor alone was recorded by the trial court of Munsif, Bareilly and there was no evidence in rebuttal. Therefore, it seems that the mortgagee or the petitioner were not interested to prove that induction of tenant was an act of mortgagee taken by him as a man of ordinary prudence so as to bring the case within the ambit of the Full Bench authority, AIR 1974 Allahabad 234 (supra). IN the absence of any evidence that the mortgagee had acted as a prudent man the petitioner cannot in the writ petition claim that he is entitled to remain in possession even after the redemption of the mortgage or his induction as tenant by the mortgagee during the currency of the mortgage was required by any circumstance or it was an act of a person of ordinary prudence. The trial court or the revisional court had no option but to deliver possession of the mortgaged property to the mortgagor. The finding of the revisional court i.e. VI Addl. District Judge, Bareilly is that the mortgagee had not acted as a prudent man in letting out the mortgaged premises to the tenant, the petitioner herein. This finding is based on record because there was no evidence before the trial court that the mortgagee while inducting the tenant had acted like an ordinary prudent man. This finding of fact cannot be disturbed in a writ jurisdiction unless it is shown that it was perverse or based on no evidence. The burden of proving that mortgagee had acted as an ordinary person of prudence was heavily cast on him or on the person who is claiming through him. This finding of fact cannot be disturbed in a writ jurisdiction unless it is shown that it was perverse or based on no evidence. The burden of proving that mortgagee had acted as an ordinary person of prudence was heavily cast on him or on the person who is claiming through him. Since they had not discharged the burden, therefore, the revisional court was right in holding that the mortgagee had not dealt with the property as a person of ordinary prudence in respect of its management. Therefore, the authority of the Full Bench AIR 1974 Allahabad 234 (supra) is not applicable to the facts of the present case. 12. The learned counsel for the respondent mortgagor have placed reliance on two Supreme Court authorities which also need a brief discussion. In M/s. Sachalmal Parasram v. Mst. Ratanbai, AIR 1972 SC 636 it was held that : "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 the protection of Rent Control Legislation." It was further observed that principle of Section 76 (a) that acts done bona fide and prudently in the ordinary course of management may bind even after the termination of the mortgagee's interest applies ordinarily to the agricultural lands and has seldom been applied to urban property. However, their Lordships held that lease in the case before them was not an act of prudent management. 13. In Carona Sheo Co. Ltd. v. K. C. Bhaskaran Nair, AIR 1989 Supreme Court 1110 it was held that if under mortgage deed the mortgagee was not entitled to induct tenant who would continue beyond the term of existence of mortgage or who would be given rights even after expiry of the mortgage and if there is no concurrence or approval of mortgagor for continuance of tenant after expiry or redemption of mortgage, no landlord and tenant relationship between the tenant and the mortgagor would come into play. Induction of tenant was held not an act of prudent management. Therefore, the tenant was not entitled to protection of Rent Control Act and he could be evicted in a suit for recovery of possession. 14. Induction of tenant was held not an act of prudent management. Therefore, the tenant was not entitled to protection of Rent Control Act and he could be evicted in a suit for recovery of possession. 14. The aforesaid two authorities have almost clinched the issue which is controverted before this Court by the learned counsel for the petitioner. I am of the opinion that between the petitioner and the respondent-mortgagor there was never any landlord and tenant relationship. The petitioner was never a tenant of mortgagor, respondent No 3. He was inducted as tenant in the mortgaged property by the mortgagee. The redemption of mortgage is now ordered against the mortgagee and that order has become final. Therefore, the rights of the petitioner, if any, during the subsistence of mortgage have come to an end. The petitioner cannot claim to be a tenant of respondent No. 3. Consequently he has no protection under the Rent Control Legislation against his eviction. He could be evicted by an order passed under Section 83 of the Transfer of Property Act by the Munsif, Bareilly from the mortgaged premises. The mortgagee has died. Respondents No. 4 and 5 are his legal representatives. Their presence in the writ petition was not necessary. However, the tenant-petitioner in the present case has arrayed them as respondents for reasons best known to him alone. Mr. S. C. Verma has presented his Vakalatnama on their behalf and wanted to argue the case against the mortgagor. He wanted to raise the pleas which were available to him before the courts below. They have not filed any writ petition nor are they aggrieved against the order of eviction of the tenant-petitioner. Their interest is limited to receiving Rs. 3000/- as mortgage money ordered to be deposited by the courts below. The courts below are, therefore, to see that the mortgage money is paid to the legal representatives of the mortgagee. No other interest of respondents No 4 and 5 survives before the courts below. They cannot resist the eviction of the petitioner in pursuance of the orders of the courts below nor can they contend that a particular procedure should be adopted in evicting the petitioner from the mortgaged premises. They are strangers now to the eviction proceedings. Therefore, the submission of Mr Verma has eluded my appreciation. 15. They cannot resist the eviction of the petitioner in pursuance of the orders of the courts below nor can they contend that a particular procedure should be adopted in evicting the petitioner from the mortgaged premises. They are strangers now to the eviction proceedings. Therefore, the submission of Mr Verma has eluded my appreciation. 15. For what has been discussed hereinabove I find no merit in the present writ petition. There is no error apparent on the face of the record in the orders of the courts below. Interference of this Court with the impugned orders in its writ jurisdiction is not, therefore, called for. 16. The writ petition is accordingly dismissed with costs which I assess at Rs. 300/-. The stay order dated 28-1-1987 is hereby vacated.