Judgment : 1. Theunsuccessful defendant before the courts below has filed this Second Appeal. 2. The plaintiff filed a suit in O.S. No. 3 of 1981 on the file of the District Munsif Court, Thanjavur redemption of the mortgage in respect of the suit properties and for possession. According to the plaintiff an usufructuary mortgage deed was executed on 7.7.1968 marked as Ex.Al. On the basis of the said mortgage deed, possession was handed over to the defendant, and since the period mentioned in the said document was over, the plaintiff is entitled to redeem the mortgage and for possession of the suit properties. The plaintiff also claimed benefits under the Debt Relief Act, to say that the mortgage deed has already been discharged. 3. The defendant contested the suit contending inter alia that the plaintiff is not entitled to any benefit under the Debt Relief Act as the defendant is in occupation of the suit properties as a tenant pursuant to Ex.B3 dated 22.6.1954. It is the case of the defendant that he never surrendered possession of the suit properties by determining his right as tenant and so the plaintiff is not entitled for possession of the suit properties as sought for. 4. The trial court accepting the case of the plaintiff, decreed the suit, but holding that the plaintiff is not entitled to any benefit under the Debt Relief Act. 5. The defendant filed appeal in A.S. No. 44/1984 on the file of the Sub-Court, Thanjavur. The learned sub Judge also concurred with the findings of the trial court dismissed the appeal. Hence this Second Appeal. 6. Thesubstantial questions of law that arise for consideration in this Second Appeals are (1) Whether the courts below have erred in not applying Section 109 of the Evidence Act to the facts of this case? (2) Whether the lower courts have erred in ignoring that principles of merger cannot apply when the extent mortgaged is only a part of the leasehold items? 7. It is not in dispute that the suit properties had been-mortgaged in favour of the defendant. In this Second Appeal the dispute is only with reference to the decree for possession as granted by the courts below. 7. It is not in dispute that the suit properties had been-mortgaged in favour of the defendant. In this Second Appeal the dispute is only with reference to the decree for possession as granted by the courts below. According to the 1st appellant/defendant as he was the tenant of the suit properties and as the tenancy was not terminated in accordance with law, he is entitled to continue as tenant even after the discharge of the mortgage, and so the courts below are wrong in granting decree for possession. 8. The 1st appellant/defendant claims such a right on the basis of Ex.B3 dated 22.6.54 lease deed executed by the plaintiff with reference to 4 acres and 13 cents in Survey Nos.218/lB and 218/1C. But the mortgage deed under Ex.A3 was only with reference to one acre out of the said land. The courts below accepted the case of the plaintiff on the basis that the lease was only for two years, and in view of the recital in the mortgage deed Ex.A3, it should be construed as there was an implied surrender of lease and possession. The learned counsel appearing for the appellants has also submitted that when it is admitted that tenancy was not terminated following the procedure known to law even after discharging the mortgage the 1st appellant/defendant is entitled to continue as a tenant. The 1st defendant's possession of the suit properties can be taken only after terminating the tenancy. The learned counsel has relied on the written statement in which it is stated that "this defendant had never surrendered his tenancy rights and the suit othi being only in respect of some of the items of the leasehold, the lease was never intended to be terminated." On the basis of this plea, the learned counsel has further submitted that in spite of the specific plea raised in the written statement, the 1st respondent/plaintiff has not come forward with a rejoinder with the plea explaining the nature of surrender of possession by the 1st appellant/defendant, and, in the absence of any such plea, the courts below are not correct in accepting the case of the plaintiff regarding the implied surrender. The learned counsel in support of his submission that no automatic merger of interest of a lessee with that of a mortgagee when the same person is the lessee as well as the mortgagee, in the absence of proof of surrender of lease, has relied on the decision of the Apex Court in Cheriyan Sosamma & Ors. v. Sundaressan Pillai Saraswathi Amma and others, 1999 (3) L.W. 316, wherein the Apex Court has held as follows;- "This Court, in a series of cases has concluded the question by holding that the question whether upon redemption of usufructuary mortgage a tenant-mortgagee was required to deliver actual or physical possession of the mortgage property to the lessor-mortgagor depends upon the intention of the parties at the time of the execution of the mortgage deed. There is no automatic merger of the interest of a lessee with that of a mortgagee when the same person is the lessee as well as the mortgagee, in the absence of proof of surrender of the lease. Unless there is merger of both rights on redemption of the mortgage, the plaintiff is not entitled to recover physical possession of the property. The right of lessee to continue in possession should survive after redemption." In the abovesaid decision, the Apex Court has held that only on the basis of the intention of the parties which reflect on the document, the nature of transaction can be found out. In the said decision, from the recitals as extracted by the Apex Court, it is clear that possession on the date of mortgage of the tenancy has been admitted. The recitals as extracted by the Apex Court are given below;- "4 The above said properties were those that were entrusted for Pattom to your husband Abraham Cherian on 26th Edavam 109 and at present were those in your possession, enjoyment and occupation". 5. The recitals as extracted by the Apex Court are given below;- "4 The above said properties were those that were entrusted for Pattom to your husband Abraham Cherian on 26th Edavam 109 and at present were those in your possession, enjoyment and occupation". 5. After aforesaid narration in the last para, it is specifically provided as under:- "The pattom on the properties as it is agreed to include the rent for the building the sum of Rs.120/-per year should be paid regularly every month as it is being paid at present to me without fail and the pattom amount should not be adjusted either in the principal amount of mortgage or the interest." In view of the clear terms in the document, the Apex Court in the said decision has come to the conclusion that the mortgagee can continue as a tenant after redemption and the plaintiff is not entitled to recover physical possession of the property. 9. The learned counsel for the appellants has also relied on the decision of the Apex Court in Nemi Chand v. Onkar Lal, AIR 1991 S.C. 2046 . In the said decision, though in the document it is stated that possession was given to the mortgagee on the mortgage, the Apex Court on the basis of other facts, has held that there would not be a symbolic surrender of possession upon the execution of the mortgage deed as the possession being already with the appellant. The said finding was given on the basis of the recitals, namely, "there shall be no interest of amount to you and no rent of the house. The interest of the amount and the rent of the house are equal". On the basis of the said recitals, the Apex Court has come to the conclusion that the relationship between the parties as lessor and lessee was subsisting and there was no merger of lease and mortgage. The strong reliance was placed by the Apex Court on the fact that the rent was kept alive and it was to be adjusted against interest. 10. The learned counsel appearing for the appellants has further relied on the decision in N.V.Hendre v. B.S.Kothawale, AIR 1996 S.C. 368 , in support of his submission that even if there is a recital regarding the delivery of possession by the mortgagor on the date of the mortgage, it cannot be construed as implied surrender. 10. The learned counsel appearing for the appellants has further relied on the decision in N.V.Hendre v. B.S.Kothawale, AIR 1996 S.C. 368 , in support of his submission that even if there is a recital regarding the delivery of possession by the mortgagor on the date of the mortgage, it cannot be construed as implied surrender. 11. The learned Senior Counsel appearing for the respondents has submitted that though there cannot be any dispute about the settled principles of law, in the present case, the possession was given to the 1st appellant on the date of mortgage, and he has agreed to hand over possession on redemption of the mortgage. On the basis of the recitals, the learned Senior Counsel has also submitted that the implied surrender of lease should be inferred in this case. In support of his submission, the learned Senior Counsel has relied on the decision in Kasilinga Padayachi v. Kaliyaperumal Padayachi & 2 others, 1998 (3) CTC 128 : 1998 (3) L.W. 332 . In the said decision, relying on the decision of the Apex Court In Gambangi A. Naidu v. Behara v. Patro, 1984 (4) SCC 382 and in Shaw Mathuradas Manganlal and Co. v. N.S. Maiage, 1976 (3) SCC 660 , it has been held as follows:- "11. The effect of the decisions rendered by the Supreme Court in the said context, is that the actual agreement between the parties and the recitals in the document have to be taken into account before concluding as to whether the parties had intended relinquishment of the rights of the tenancy. Even though tenancy is not, specifically referred to in Ex.A1, the very fact that the mortgagee had agreed to surrender possession of the land to the mortgagor, would necessarily lead to a presumption of implied surrender of lease-hold right." 12. To appreciate the said arguments of the counsel on both sides, it is better to extract the recitals in the document itself which is as follows: - 13. From the abovesaid recitals, it is clear that:- (1) the possession was handed over pursuant to the document; (2) in view of interest, the mortgagee can enjoy the property in the manner as he likes; and (3) after expiry of the period of 5 years, on payment of the mortgage amount, the mortgagee (appellant) should hand over possession of the property to the respondent /plaintiff. 14. 14. From the abovesaid recitals, it is clear that the relationship of mortgagor and mortgage had been create by putting an end to the relationship of landlord and tenant with reference to the land in question. In the absence, of any such positive recitals to continue the relationship of landlord and tenant, it has to be taken that there was implied cessation of relationship of landlord and tenant and new relationship had commenced. The decisions cited by the learned counsel for the appellants cannot be relied on to the facts of the present case. 15. As referred to already, the recitals in the document dealt with in the decisions in Nemi Chand v. Onkar Lal, AIR 1991 S.C. 2046 and Cheriyan Sosamma & Ors. v. Sundaressan Pillai Saraswathi Amma and others, 1999 (3) L.W. 316 would clearly suggest that the relationship of landlord and tenant subsists. The conclusion of the Apex Court in the said decisions is on the basis of the said recitals in the said document. Even in the decision in N.V.Hendre v. B.S.Kothawale, AIR 1996 S.C. 368 , as discussed above, the apex court had rejected the case of implied surrender mainly on the basis that in one mortgage deed there was no mentioning about the delivery of possession of the mortgagor in the event of his redeeming the mortgage. 16. Inthe present case, in Ex.A3 document, the mortgage deed it has been agreed to deliver possession on payment of mortgage amount. If the said recital is there in the said document which was dealt with by the Apex Court, then the view would be different. So, on the basis of the recitals, we have to cull out the intention of the parties. The said intention is very clear that there was implied cessation of relationship of landlord and tenant. 17. The learned counsel for the appellants relying on the decision in T.K.Lathika v. Seth Karsandas Jamnadas, 1999 (6) SCC 632 , has submitted that the implied surrender as allowed and held by the courts below cannot be sustained. In the said decision, the apex court has held as follows:- "12. 17. The learned counsel for the appellants relying on the decision in T.K.Lathika v. Seth Karsandas Jamnadas, 1999 (6) SCC 632 , has submitted that the implied surrender as allowed and held by the courts below cannot be sustained. In the said decision, the apex court has held as follows:- "12. The principle which governs the doctrine of implied surrender of a lease is that when a certain relationship existed between two parties in respect of a subject-matter and a new relationship has come into existence regarding the same subject-matter, the two sets cannot coexist, being inconsistent and incompatible between each other i.e. if the latter can come into effect only on termination of the former, then it would be deemed to have been terminated in order to enable the latter to operate. A mere alteration or improvement or even impairment of the former relationship would not ipso facto amount to implied surrender. It has to be ascertained on the terms of the new relationship vis-a-vis the erstwhile demise and then judged whether there was termination of the old jural relationship by implication". 18. There cannot be any dispute about the proposition of law. While dealing with the question whether there could be a merger of a mortgagee and tenant as held in the decision in Gambangi A. Naidu v. Behara v. Patro, 1984 (4) SCC 382 , it has been held as follows:- "In our view the answer to the question raised in the appeal must depend upon whether there was an implied surrender of the lessee's rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor. And this obviously depends upon what was the mention of the parties at the time of execution of the mortgage deed in favour of the sitting tenant to be gathered from the terms and conditions of the mortgage transaction in light of surrounding circumstances of the case. And this obviously depends upon what was the mention of the parties at the time of execution of the mortgage deed in favour of the sitting tenant to be gathered from the terms and conditions of the mortgage transaction in light of surrounding circumstances of the case. It may be stated that in both the decision of the Andhra Pradesh High Court on which reliance was placed by the respective counsel of the parties in support of his own contention the question was ultimately decided on proper construction of the terms and conditions of the mortgage transactions; in the earlier decision the Court took the view that there was nothing in the mortgage deed to suggest that there was an implied surrender of the lessee's rights while in the latter case the Court held that the terms of the mortgage deed showed that the lessee had impliedly surrendered his rights. In other words, it all depends upon whether by executing a possessor or usufructuary mortgage in favour of a sitting tenant the parties intended that there should be a surrender of lessee's rights or not, and only if an implied surrender of lessee's rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. 19. Evenin the said decision cited by the learned counsel for the appellants, the apex court has found that the intention should be gathered from the terms and conditions of the mortgage transactions. Only on that basis the relationship can be found out. While considering the similar recitals the learned Judge in the decision in Kasilinga Padayachi v. Kaliyaperumal Padayachi and 2 others, 1998 (3) CTC 128 : 1998 (3) L.W. 332 , has held that there should be a presumption of implied surrender of leasehold rights, though it is not specifically referred to in the document. In view of the recitals in the present document and also in view of the settled principles of law. I am of the opinion that the courts below are correct in holding that there is implied surrender of leasehold right on the date of the mortgage deed. 20. For the foregoing reasons, the Courts below are correct in decreeing the suit for redemption. Hence I do not find any merits in this second appeal and the same is dismissed accordingly. No costs.