MANGALATHACHI Vs. K.R. KALYANASUNDARA MUDALIAR AND ANR.

JUDGEMENT

(1.) THE plaintiff is the appellant. She executed a mortgage bond in respect of a land R.S. No. 324/1, an extent of 33 cents in Thirupirambiam village on 15th April, 1944, in favour of one Mangalam Anni for Rs. 200. It is admitted that the mortgage was taken for the benefit of the first defendant in the name of Mangalam Anni. Possession was delivered to the first defendant. The plaintiff paid a sum of Rs. 200 to the first defendant which according to him was due in respect of the mortgage on 30th April, 1959. The first defendant did not deliver possession of the suit land. Subsequently the plaintiff claimed for a return of Rs. 100 on the ground that she is entitled to the benefits of the Madras Agriculturists Relief Act. It is unnecessary to consider that question of benefit under the Madras Agriculturists Relief Act as it is not before me. Possession was not delivered to the plaintiff, though the receipt of the sum of Rs. 200 and discharge of the mortgage was admitted by the first defendant. According to the first defendant he leased the suit land to the second defendant and on the discharge of the mortgage he directed the second defendant to attorn the lease to the plaintiff. According to the second defendant, he took the land on lease under the first defendant, the usufructuary mortgage and continued to be in possession. After the discharge of the mortgage he attorned the lease to the plaintiff. It was the case of the defendants that the plaintiff accepted the second defendant as a tenant. The second defendant raised the contention that he became entitled to the rights of a cultivating tenant on taking a lease from the first defendant, that subsequently he became a tenant of the plaintiff, and therefore, he cannot be evicted under the Madras Cultivating Tenants Protection Act. The trial Court negatived the contentions of the defendants and gave a decree as prayed for by the plaintiff. On an appeal, the lower appellate Court, while confirming the finding of the trial Court that the mortgage had been discharged, held that the plaintiff is not entitled to possession, as the second defendant acquired the rights of a cultivating tenant.

(2.) IN coming to the conclusion that the second defendant is a cultivating tenant, the lower appellate Court was inclined to accept the case of the defendants that the second defendant became a tenant under the plaintiff herself. This finding is recorded in paragraph 12 of the lower appellate Court's judgment. The evidence of the first defendant is that he asked the plaintiff to take possession of the land from the second defendant who was the lessee. It is the case of the first defendant that the plaintiff agreed to do so. But the plaintiff vehemently denied that she accepted the second defendant as her tenant. It has not been found that the plaintiff accepted any rent from the second defendant. It is also noteworthy that the second defendant has not stated in his evidence that the plaintiff accepted the rent or attornment of the tenancy by him. The inference of the lower appellate Court that the plaintiff agreed to accept the attornment is not supported by the evidence and is based on surmises. The fact that the plaintiff did not ask for possession from April, 1959 to October, 1960, would not prove the case of the second defendant that the plaintiff accepted him as his tenant. As already pointed out, the second defendant did not say that the plaintiff accepted him as a tenant. The lower appellate Court has extracted the evidence of the first defendant that he asked the plaintiff to take possession of the land from the second defendant, and the plaintiff agreed to do so, and that he also directed the second defendant to pay rent to the plaintiff. The lower appellate Court has not specifically accepted this piece of evidence. In the absence of a specific finding regarding the evidence of the first defendant and in the absence of the second defendant's evidence that the plaintiff accepted him as his tenant, the finding which is purely based on surmises cannot stand.

(3.) AN usufructuary mortgagee is entitled to retain possession of the property mortgaged to him and to receive rents and profits accruing from the property till the payment of the mortgage money. The mortgagor is entitled to recover possession when the mortgage is discharged. The right of the mortgagee in possession to admit a tenant cannot be disputed. The mortgagee cannot confer on his transferee a better title than what he possesses and therefore any lease by the mortgagee would cease when the mortgage is redeemed. But the Courts have recognised that any agricultural lease created by the mortgagee would be binding on the mortgagor even though the mortgage had been redeemed, provided the mortgagee as a prudent owner entered into the lease agreement in the ordinary course of his management. This is in the nature of an exception to the rule that the mortgagee cannot confer a better title than what he has.