Case Note & Summary
The appellant, Mhamulal Husen Momin, filed a second appeal against the judgment of the 5th Additional District Judge, Kolhapur, which confirmed the trial court's dismissal of his suit for declaration and injunction. The suit property, City Survey No.251/A, C Ward, Kolhapur, was originally owned by Babalal Satarmaker, who died on 27-5-1962. His heirs included his son Gulmahamad (defendant no.1) and his step-mother Mahirajbi and step-brothers (defendants 2 to 7). On 9-6-1966, the heirs borrowed Rs.1,000 from the appellant, and later an additional Rs.2,960, totaling Rs.3,960. They executed a registered mortgage deed in favor of the appellant, who was put in possession of a portion of the property measuring 22'x8'. The mortgage was for a period of three years. Shortly before the expiry of the three years, defendants 2 to 7 executed a rent note in favor of the appellant, agreeing that he would continue in possession as a tenant at a monthly rent of Rs.110. The appellant claimed that his name was entered in municipal records as a tenant and that he paid rent to defendants 2 to 7. However, defendant no.1 Gulmahamad filed Regular Civil Suit No.648 of 1981 for possession and mesne profits against the appellant, and also obstructed the appellant's peaceful possession. Consequently, the appellant filed Regular Civil Suit No.312 of 1982 for a declaration that he was a tenant and for an injunction restraining the defendants from interfering with his possession. The trial court dismissed the suit, holding that the rent note executed by defendants 2 to 7 was not binding on defendant no.1, who was a co-owner and had not consented. The first appeal was also dismissed. In the second appeal, the High Court framed the substantial question of law: whether the appellant acquired tenancy rights by virtue of the rent note. The court held that a mortgagee's possession after the expiry of the mortgage period cannot be converted into tenancy without the consent of all co-owners. The rent note executed by only some co-owners was not binding on the other co-owner, defendant no.1. The court also noted that the appellant's remedy, if any, was to seek redemption of the mortgage or to file a suit for recovery of the mortgage money, but he had not done so. The second appeal was dismissed, confirming the lower courts' decisions.
Headnote
A) Property Law - Mortgage - Creation of Tenancy - Mortgagee's possession after expiry of mortgage period - Rent note executed by some co-owners - Whether binding on other co-owner - Held that a mortgagee cannot unilaterally convert his possession into that of a tenant without consent of all co-owners, and a rent note executed by only some co-owners is not binding on the other co-owner who did not consent. (Paras 1-10)
B) Property Law - Co-ownership - Lease by co-owner - Validity - Lease by one co-owner without consent of others - Held that a lease by a co-owner is not binding on other co-owners unless they consent or ratify. (Paras 8-10)
C) Limitation Act, 1963 - Article 61 - Suit for redemption of mortgage - Period of limitation - Held that the suit for redemption must be filed within 30 years from the date of mortgage, and the mortgagee's possession after expiry of mortgage period does not extinguish the mortgagor's right to redeem. (Paras 5-6)
Issue of Consideration
Whether the appellant mortgagee acquired tenancy rights in the suit property by virtue of a rent note executed by some co-owners, and whether the suit for declaration and injunction was maintainable.
Final Decision
Second appeal dismissed. The judgment and order of the 5th Additional District Judge, Kolhapur, confirming the trial court's dismissal of the suit, are upheld.
Law Points
- Mortgage by conditional sale
- Tenancy creation by co-owner
- Binding nature of rent note
- Adverse possession
- Limitation for redemption
Case Details
2005 LawText (BOM) (08) 134
Second Appeal No. 760 of 1997
Shri S.V. Sadavarte for Appellant, Shri C.G. Gavnekar for Respondent no.1
Shri Mhamulal Husen Momin
Gulmahamad Babalal Satarmaker and others
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Nature of Litigation
Second appeal against dismissal of suit for declaration of tenancy rights and injunction.
Remedy Sought
Appellant sought declaration that he was a tenant and injunction restraining defendants from interfering with his possession.
Filing Reason
Appellant claimed tenancy rights based on a rent note executed by some co-owners, but defendant no.1 (co-owner) filed a suit for possession and obstructed his possession.
Previous Decisions
Trial court dismissed the suit; first appeal dismissed by Additional District Judge, Kolhapur.
Issues
Whether the appellant acquired tenancy rights by virtue of the rent note executed by defendants 2 to 7?
Whether the rent note executed by some co-owners is binding on the other co-owner (defendant no.1)?
Submissions/Arguments
Appellant argued that he was a tenant by virtue of the rent note and had paid rent to defendants 2 to 7.
Respondent no.1 argued that the rent note was not binding on him as he was a co-owner and had not consented.
Ratio Decidendi
A mortgagee's possession after the expiry of the mortgage period cannot be converted into tenancy without the consent of all co-owners. A rent note executed by only some co-owners is not binding on the other co-owner who did not consent. The appellant's remedy, if any, was to seek redemption or recovery of mortgage money, not to claim tenancy.
Judgment Excerpts
The Appellant original plaintiff in Regular Civil Suit No.312 of 1982 has preferred this Second Appeal against the judgment and order passed by the Court of 5th Additional District Judge, Kolhapur whereby the order passed by the trial Court dismissing the plaintiff’s suit for declaration and injunction was confirmed and the first appeal was dismissed.
Brief facts giving rise to this appeal are as under : The suit property bearing City Survey NO.251/A, C Ward of Kolhapur was initially owned by one Babalal Satarmaker.
He died on 27-5-1962 leaving behind son viz. Gulamahamad B. Satarmaker and Mahirajbi, step mother of Gulamahamad and 2 step brothers.
Gulamahamad and other heirs of Babalal had taken an amount of Rs.1,000/- from the present Appellant Mhamulal Husen Momin on 9-6-1966.
they had again taken an amount of Rs.2960/-. Thus they had received in all Rs.3960/-.
For the said amount Gulamahamad and others executed registered mortgage deed in favour of the present Appellant and he was put in possession of the suit property admeasuring 22’x 8’.
As per terms and conditions of the said mortgage deed the Appellant mortgagee was to return the possession after the period of 3 years.
However, few days prior to expiry of period of 3 years, Mahirajbi and others i.e. original defendant nos.2 to 7 executed a rent note in favour of the present Appellant and agreed that present Appellant should continue his possession of the suit premises as a tenant at monthly rent of Rs.110/-.
According to the Appellant his name was also entered in municipal record as a tenant of the said premises.
He also paid rent of their shares to defendant nos.2 to 7.
However, defendant no.1 Gulmahamad filed Regular Civil Suit NO.648 of 1981 for possession and means profit and claimed possession of suit premises from the plaintiff.
Not only that but he obstructed Appellant’s peaceful possession of the suit premises.
Procedural History
The appellant filed Regular Civil Suit No.312 of 1982 for declaration and injunction. The trial court dismissed the suit. The appellant appealed to the 5th Additional District Judge, Kolhapur, who dismissed the first appeal. The appellant then filed the present Second Appeal No.760 of 1997 in the Bombay High Court.
Acts & Sections
- Limitation Act, 1963: Article 61
