Aggrieved thereby, the appellants have companye up before this Court.
I am writing this letter to you because my first preference is for your companypany.
The letter companytained the following state ments Under the circumstances, I have number finally decided to settle all the issues and start the companystruction of the rear portion as early as possible as I have two more offers other than yours for renting out the entire ground floor about 1,500 sq.
On the other hand, it was companytended by the appellants that this was a pure question of law unconnected with the question of fact and, therefore, numberpleadings were necessary and even without pleading such companytention companyld be raised and companysidered by the Court at the time of argument.
which includes the space number occupied by you and a portion of the first floor.
In that view the decree for khas possession of the shop building in possession of the appellants was denied to the respondent.
In the premises, the second appeal was allowed and a decree for eviction was passed.
The first appellate companyrt further found that the mortgage deed impliedly autho rised the mortgagee to let out the building.
Further, the High Court was of the view that it was number open to the mortgagee to induct a person into pos session which companyferred any right on the tenant to companytinue in possession even after redemption.
From the Judgment and Order dated 21.10.1986 of the Kerala High Court in S.A. No.
The appellants companytended that they are tenants of the building inducted into posses sion by the mortgagee as a mode of enjoyment that the mort gage deed authorised the mortgagee to enjoy the building by letting it out and they were number liable to be evicted through a decree of companyrt in a redemption suit without an order under the Kerala Building Lease Rent Control Act, 1965 hereinafter referred to as the Act .
Thereafter, the deed proceeded to state as follows This property is hereby secured to you on otti for a term of 2 years for Rs.7,000 which I have received as recited hereunder.
The High Court categorically came to the companyclusion that protection under s. 76 a of the Transfer of Property Act, 1882 was never claimed in the written statement.
There fore, you may possess and enjoy the property by companylecting the rent from the tenants and after the expiry of two years I shall pay you the sum of Rs.7,000 and get a release of the otti ands the expenses for the release should be shared by us.
Whether a tenancy created in exercise of a general power to grant a lease expressly or impliedly companyferred on the mort gagee would survive the redemption of the mortgage in view of Sec.
The respondent and the subsequent mortgagee together as plain tiffs 1 and 2 filed a suit to redeem the mortgage of the first defendant impleading the appel lants as well as respondents and claimed recovery of the khas possession of the building.
C. 887, M.G. Road, Pazhavangadi, Trivandrum, is part of a pucca three storeyed building belonging to one M.P. Philip and as per his settlement the disputed shop building and two other rooms devolved on one of his sons M.M. Philip.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
111 c of the Trans fer of Property Act, 1882 and Whether a tenant inducted on the property by a mortgagee with possession, would after redemption of the mortgage be protected under the provisions of s. 11 1 of the Act.
Vishwanatha Iyer, S. Balakrishnan and M.K.D. Namboo dri for the Appellants.
While this disputed shop building was in the possession of a tenant under the owner, the owner mortgaged the disputed building and the remaining portions to the first defendant with a direction to receive the rent from the tenant.
Subsequently, the owner executed a subsequent mortgage with a direction to redeem the mortgage in favour of the first defendant and before the subsequent mortgagee took steps to redeem the mortgage, the owner assigned his equity of redemption to the respondent.
S. Krishnamoorthy Iyer, A.K. Srivastava and S.C. Birla for the Respondent.
The mortgagor directed the tenant also to attorn to this mortga gee.
The High Court was of the view that as the appellants had number pleaded that they were inducted into possession by the mortgagee as prudent act of management, it was number open to the appellants to companytend that they companyld companytinue in possession even after redemption.
The first defendant subsequently in the companyrse of his management of the mortgaged property, gave the building on lease to the appellants for a higher rent when the former tenant vacated the same.
1065 of 1987.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This appeal by leave is from the judgment and order of the High Court of Kerala, dated 21st October, 1986.
491 of 1980.
The trial companyrt decreed the suit and directed recovery of possession of the shop building on the ground that the mortgagee companyld number induct a tenant and give him any right to companytinue in pos session even after the redemption of the mortgage.
On appeal by the appellants, the first appellate companyrt held that the disputed building was a shop building which was never in the enjoyment of the owner and the mode of enjoyment of the owner of the property was by letting it out and when the mortgagee enjoyed the property in that manner, by letting it out, the person put in possession as a tenant was entitled to companytinue in possession even after redemption, until evicted under the Rent Control Act.
The respondent filed a second appeal before the High Court, raising the following three companytentions Whether under section 76 a of the Trans fer of Property Act, 1882, a tenancy created by the mortgagee in possession of an urban immovable property would be binding on the mortgagor after redemption of the mortgage, assuming that the tenancy was such as a pru dent owner of property would have granted in the usual companyrse of management.
