Full Judgment Text
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PETITIONER:
POLAMMARASETTI VARANA VENKA SATYANANARAYANA
Vs.
RESPONDENT:
SUDDHA APPARAO NAIDU (DEAD ) AND ORS RESPONDENT
DATE OF JUDGMENT: 18/03/1997
BENCH:
G.N. RAY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This appeal is directed against the judgment of the
Andhra Pradesh High court dated April 16,1987 passed in
second appeal No. 308 of 1981. By the impugned judgment ,
the High court has dismissed the second appeal preferred by
the appellant. One Bheemarasetti Adinarayan Naidu was the
plaintiff in Suit No. O.S. No 55 of 1967 in the Court of
District Munsif, anakapalli which was renumbered as OS No.
260 of 1969 in the court of principal district Munsif.
Yellamanchill. Such suit was instituted by the plaintiff for
redemption of usufructuary mortgage created by deed dated
December 11,1946 (Ext. A-1) on the basis of the sale deed
dated Saptember 19, 1960 (Ext.A-2) under which the said
plaintiff purchased the property with a right to redeem. The
appeliant was the second defendant in the said suit. There
is no disoute that at the time of creating such usufructuary
mortgage in 1946, the appellant was continuing as a lease
and the lease was to expire in 1948. The appellant contended
that his right as lessee continued despite the said
usufructuary mortgage and in view of such right continuing ,
he had acquired non-evictable right and, therefore, there
was no question of taking over possession of the property
from him by redemption of mortgage . Such contention has not
been accepted either by the court below or by the High
Court.
M.K. Ram Kumar, learned counsel appearing for the
appellant has contended that simply on execution of
usufructuary mortgage the right of the lessee does not come
to an end unless and until it can be established that such
lease hold interest had been termminated or the lease hold
interest had been termminated or the lease hold interest had
been surrendered either by exoress conduct of the parties or
by necessary implication flowing from the deed of mortgage.
Save as aforesaid, it must be held that the lease hold
interest continues notwithstanding creation of usufructuary
mortgage, In support of such contention. Reliance has been
made to the decision of this court in Gopalan Krishnakutty
vs. Kunjamma Pillai Sarojini Amma & ors ( 1996 (3) SCC 424).
After taking into consideration of the decisions of this
Court in Narayan Vishnu Hendre Vs Babuao Savaiaram
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Kohawale (1995(6) SCC 608) and in Gambangi Applaswamy
Naidu vs. Behara Venkataramanayya Patro (1984(4) SCC 382)
and in Shah Mathuradas Maganlal & Co. Vs. Nayabba
Shankarappa Malave (1976 (3) SCC 660) it has been held in
Gopalan Krishnakutty’s case that simply on the execution of
the usufructuary martgage deed. surrender of tenancy right
cannot be inferred but the question of continuance of lease
hold interest upon execution of usufructuary mortgage is
required to be decided on the facts situation of the case.
Mr. Ram Kumar has submitted that there is no automatic
merger of interest of the lessee with that of the mortgagee
and in the absence of proof of surrender by the defendant of
his lease hold interest and to hold only the right of
mortgagee, the plaintiff is not entitled to automatically
claim possession of the lease hold premisses by redeeming
the mortgage.
We have taken into consiceration the mortgage deed
executed in 1946 . In our view. a clear intention of only
retaining the mortgage’s interest is to be inferred in view
of the specific statement that on redemption, the mortgagee
should deliver possession to the mortgage. we may indicate
that the expression to that effect used in the mortgage deed
has been noted by the courts below. We may also indicate
that there is no indication in the mortgage deed as to how
the rent payable by the mortgagee deed lessee was to be
adjusted between the parties. The absence of any mode of
adjustment of lease hold rent implies that it was not
intended that despite the said mortgage. Parties intended
that the lease hold interest was to continue. It may also be
indicated here that lease hold interest was to expire in
1948. In the absence of any payment of rent for such lease
hold interest and acceptance of such payment after expiring
of the period of lease it can not also be contended and that
there was a case of holding over by the lessee. In the
aforesaid circumstances. The finding by the Courts below
that the lease hold interest had come to an end and the
plaintiff was entitled to the redemption of the mortgage and
to take delivery of the properties under these mortgage deed
cannot be held to be unjust or improper. we therefore do not
find reason to interfere with the impugned judgment of the
High Court. The appeal, therefore, fails and is dismissed.
No costs.