Case Note & Summary
The case involves a second appeal by the original plaintiff, Tukaram Govind Patil (since deceased, represented by his heirs), against the original defendant, Suresh Bapusaheb Ingale. The dispute concerns a suit land where the plaintiff executed a deed of mortgage by conditional sale on 4th May 1971 in favor of the defendant for a period of 5 years for a consideration of Rs. 4000/-. The plaintiff claimed that under an oral agreement, the defendant took possession of the suit land in May 1970, constructed a temporary shed, and started a garage business. The plaintiff filed a suit for possession after the mortgage period expired. The trial court decreed the suit in favor of the plaintiff, but the lower appellate court reversed the decree, holding that the tenancy created by the mortgagor during the mortgage period was extinguished upon redemption. The substantial question of law framed was whether the defendant's tenancy is revived once the mortgage is redeemed. The High Court, after hearing both sides, held that the tenancy is not extinguished by redemption but continues as a lease under Section 111(d) of the Transfer of Property Act, 1882. The Court allowed the appeal, set aside the lower appellate court's judgment, and restored the trial court's decree for possession.
Headnote
A) Property Law - Mortgage and Tenancy - Revival of Tenancy upon Redemption - Transfer of Property Act, 1882, Sections 58, 111(d) - The issue was whether a tenancy created by the mortgagor during the subsistence of a mortgage by conditional sale revives after the mortgage is redeemed. The Court held that the tenancy is not extinguished by redemption but continues as a lease under Section 111(d) of the Transfer of Property Act, 1882, as the mortgage and lease are distinct transactions. The Court allowed the appeal and set aside the lower appellate court's decree, restoring the trial court's decree for possession. (Paras 1-3)
Issue of Consideration
Whether the Defendant's tenancy is revived once the mortgage is redeemed?
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the lower appellate court, and restored the decree of the trial court for possession in favor of the plaintiff.
Law Points
- Tenancy created by mortgagor during mortgage period is not extinguished upon redemption
- but continues as a lease under Section 111(d) of Transfer of Property Act
- 1882
- Revival of tenancy upon redemption of mortgage
Case Details
2005 LawText (BOM) (04) 172
Second Appeal No. 296 of 1988
Shri P.D.Dalvi for the Appellants, Shri S.M.Kamble for the Respondent
Tukaram Govind Patil (since deceased by his heirs) 1. Smt.Akkatai Tukaram Patil (since deceased by her heirs) 1A(I) Dattatraya Tukaram Patil, 1A(II) Chandrakant Tukaram Patil, 2. Dattatraya Tukaram Patil, 3. Chandrakant Tukaram Patil
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Nature of Litigation
Second appeal against the judgment and decree of the lower appellate court in a suit for possession of land after redemption of mortgage.
Remedy Sought
The appellant (original plaintiff) sought possession of the suit land after the mortgage period expired.
Filing Reason
The plaintiff executed a mortgage by conditional sale in favor of the defendant, who took possession and constructed a shed for garage business. After the mortgage period, the plaintiff sought possession, but the defendant claimed tenancy rights.
Previous Decisions
The trial court decreed the suit in favor of the plaintiff. The lower appellate court reversed the decree, holding that the tenancy was extinguished upon redemption.
Issues
Whether the Defendant's tenancy is revived once the mortgage is redeemed?
Submissions/Arguments
The appellant argued that the tenancy created by the mortgagor during the mortgage period continues after redemption. The respondent argued that the tenancy is extinguished upon redemption.
Ratio Decidendi
A tenancy created by the mortgagor during the subsistence of a mortgage by conditional sale is not extinguished upon redemption of the mortgage. The tenancy continues as a lease under Section 111(d) of the Transfer of Property Act, 1882, as the mortgage and lease are distinct transactions.
Judgment Excerpts
The substantial question of law being whether the Defendant's tenancy is revived once the mortgage is redeemed?
The Second Appeal is by the original Plaintiff.
The case of the Appellant/Plaintiff is that on 4th May 1971 he executed a deed of mortgage by conditional sale in favour of the Respondent-Defendant.
Procedural History
The original plaintiff filed a suit for possession after the mortgage period. The trial court decreed the suit. The defendant appealed to the lower appellate court, which reversed the decree. The plaintiff then filed this second appeal, which was admitted on 27th February 1989 on the substantial question of law.
Acts & Sections
- Transfer of Property Act, 1882: 58, 111(d)
