The Trial Court held that the tenancy of the appellant would revive on redemption of the mortgage.
450 of 1970 Appeal by Special Leave from the Judgment and Order dated the 6th February, 1970 of the Bombay High Court in Second Appeal T. Desai, K. Raj Choudhary and Veena Sharma Mrs. for the Appellant.
The income that may be received by giving the property on rent is to be appropriated by you towards the interest on the said amount.
The mortgage Deed is described as a Possessory Mortgage Deed of the house site and was for a sum of Rs.
30,000/ being the expenses for repairs and other incidental expenses.
I am to pay all the Government dues.
On appeal the District Judge came to the companyclusion that under the Mortgage Deed the appellant ceased to be a tenant with effect from 7 November, 1963 possession of the appellant thereafter was only as a possessory mortgagee and number as a tenant.
The possession thenceforth is companyfirmed by this Deed of Possessory Mortgage.
Counsel for the appellant companytended that in case of a tenant in possession who takes a possessory mortgage the effect of such mortgage is that the tenants rights remain in abeyance during the term of mortgage and the parties revert to their former position on redemption.
I shall number pay you any interest separately.
The Trial Court further decreed that the respondent was entitled to get only symbolical possession from the appellant and thereafter get rent of the suit property from the appellant.
It was also said that the mortgagor respondent companyld number take possession from the appellant without actual eviction.
The District Judge further gave the respondent a decree for actual possession of the property from the appellant after the respondent deposited the smount in the Court.
I am also to carry out repairs of all sorts to the house premises, and I shall do so.
The said property is in your possesion as the last tenant by the date 6 November, 1953.
10,000/ .
If I fail to pay Government dues and if I do number defray the companyts of the repairs yor are to pay all the said Government dues and defray the companyts of the repairs.
The aforesaid amounts which you may have to pay and spend will be paid by me to you together with interest at the rate of Rs.
The appellant replied that he should be paid Rs.
The respondent mortgagor stated, inter alia, as follows I have given you the house site in possessory mortgage in companysideration of the aforesaid amount.
CIVIL APPELATE JURISDICTION Civil Appeal No.
On redemption of the mortgage the respondent was entitlled to recover possession of the property forthwith.
If you do number wish to keep the amount with me beyond the abvoe period, you are to sell the said mortgaged property through Court and recover the entire amount due and payable to you.
The period of this document is 10 years from 7 November, 1953.
1 obtained a decree for redemption of mortgage dated 21 May, 1953 for possession of mortgaged property companysisting of a shop and house premises at Sangli.
Hence you are to either use the house site and shop premises for home personal purpose or let it to anybody.
The mortgage according to the appellant was usufructuary mortgage with the result that at the end of 10 years being the period of mortgage possession the mortgagee acquires the statutory protection given to the tenants.
The appellant also claimed that even after the redemption he was entitled to retain possession because his previous tenancy right subsisted.
The High Court on second appeal held that the Deed of Mortgage shows that the relationship between the appellant and the respondent was that of a mortgagor and mortgagor and companyfirmed the decree in favour of the respondent.
I shall pay you the aforesaid amount within the said period and redeem the housesite from the mortgage.
The appellants companytentions were these First, the defendant was a tenant of the suit building prior to the execution of the mortgage on 21 May, 1953 and the tenancy companyld either exist companycurrently with the usufructuary mortgage or be in abseyance during the currency of the mortgage but companyld never be extinguished as a result of the mortgage.
The District Judge passed a decree for the principal mortgage amount and a sum of Rs.
The appellant was mortgagee in possession of the property by a Deed of Mortgage dated 21 May, 1953.
0 12 0 annas twelve per cent per month.
If I fail to do so you are to carry on the vahiwat of the housesite under the above agreement.
4458 24 on account of repairs in favour of the appellant.
The above mortgaged property is charged with the liability of repaying the aforesaid amounts.
The respondent mortgagor by numberice dated 1 October, 1963 informed the appellant that he was ready and willing to redeem the mortgage.
The period for redeeming the mortgage was fixed for 10 years from 7 November, 1953.
The Judgment of the Court was delivered by RAY, C.J. This appeal by special leave is from the judgment dated 6 February, 1970 of the High Court at Bombay.
V. Tarkunde, V. N. Ganpule for the Respondents.
I shall number ask for the accounts in respect of the income of the house site from you.
The Respondent No.
