Satya Narain Gupta vs Gulab

Surinder Singh, J.—The facts giving rise to this Regular Second Appeal, which have been noticed in detail by the Courts below may be, briefly, recapitulated. The suit in the present case was filed by Gulab respondent, with the allegations that one Ram Chander was the owner of a two-storeyed shop situated in Moti Chowk, Rewari, particulars where of were given in the plaint. The said Ram Chander mortgaged the property with possession in favour of Meena Mal, adoptive father of Satya Narain appellant, by means of a registered Mortgage Deed, dated August 11, 1943, for a consideration of Rs. 7,000/-. Ram Chander had also agreed to pay interest at the rate of Rs. 200/- per annum. Ram Chander died on November 4, 1958. The plaintiff respondent claimed that he was a tenant in the shop in dispute under Ram Chander before the mortgage was effected and he was, therefore, a person interested in the property, who was entitled to redeem the mortgage by Ram Chander. Certain other allegations were also made in the plaint which are not very relevant in so far as the decision in the present appeal is concerned. One fact may, however, be noticed that Meena Mal mortgagee had filed an ejectment application against the plaintiff-respondent, but the same was dismissed on October 11, 1965. However, in appeal filed by Meena Mal, a compromise was arrived at between the parties and it was agreed that the plaintiff-respondent would pay Rs. 25/-per month to Meena Mal, with effect from April 11, 1966. Another averment made by the respondent was that he had spent Rs. 900/- for carrying out the repairs in the shop, and this amount was adjusted in the rent payable upto May 31, 1968. The plaintiff prayed for a decree for possession by redemption of the property in suit on payment of the amount, found due by the Court. The suit was contested by the appellant, who denied that the respondent was a tenant under Ram Chander before the execution of the mortgage. It was asserted that the plaintiff-respondent was a tenant under the appellant and had agreed to remain in possession of the lower storey of the shop, by virtue of the compromise and that he had no locus standi to file a suit for redemption of the property. It was further pleaded that in any case the respondent being a tenant only of the lower storey of the shop, he could not file a suit for redemption in regard to the upper storey and the staircase of the building. The trial Court framed the necessary issues in this case and after considering the material produced by the parties, held that after the respondent attorned as a tenant under the appellant, his rights as a tenant under Ram Chander mortgagor remained in abeyance, with effect from April 11, 1966, onwards. Consequently, the respondent was not entitled to redeem the mortgage, as he did not possess the status of a tenant under the mortgagor. The suit of the respondent was, therefore, dismissed. The respondent preferred an appeal against the decision of the trial Court, which was heard by the Additional District Judge, Gurgaon, who reversed the finding of the trial Court mentioned above, and decreed the suit of the respondent for possession by redemption of the mortgage, subject to his paying Rs. 8054/- to the appellant, within six months. The present is a second appeal filed by the defendant-appellant, to impugn the decision of the lower appellate Court.

Mr. Arun Jain, learned counsel for the appellant has made three submissions, which may be noticed in turn. His first contention is that section 91 (a) of the Transfer of Property Act (hereinafter referred to as the Act) has not been made applicable to the States of Punjab and Haryana, and hence the respondent had no locus standi to file a suit for redemption, by virtue of the said provision. It is material to note that this objection was never taken at any stage earlier, either during the protracted trial of the case or even in the appeal before the first appellate Court. However, the objection, being purely of a legal nature, has been entertained and I have heard the learned counsel for the parties on the same. There is no gainsaying that section 91 of the Act has not been specifically made applicable to the States of Punjab and Haryana, but then there is no dearth of case law on the point, that even though the statutory provisions of the Transfer of Property Act are not made applicable to these States, the general principles embodied in the Act would always be available under the principles of equity, justice and good conscience. The learned counsel for the appellant has tried to take support from certain observations in Sardara Singh and another v. Harbhajan Singh and others 1974 P.L.J. 341, but this authority is of no benefit in the present case. The authority deals with an oral exchange and it was held that the technical rules embodied in the Act, would not be applicable to Punjab. There is no quarrel with this proposition of law. The right to redeem a mortgage as conferred by section 91 and the principles of subrogation u/s 92 of the Act, cannot be deemed to be technical rules, but they are merely principles, which are rules of justice equity and good conscience. The objection of the learned counsel must, therefore, be repelled.

The second submission of Mr. Arun Jain, relates to the point which is essentially the bone of contention in this case. The learned counsel reiterates the argument which was accepted by the trial Court that by attorning to the appellant, the plaintiff-respondent had lost his earlier status of a tenant under the mortgagor. Although an opportunity in this behalf was afforded, the learned counsel was unable to cite any direct authority on the point, and the best he could do, was to refer to Thakur Amar Singh v. Mehanga Ram Bhandari and another 1981 (1) R.C.R. 638. In the said authority, all that was held was that a tenant who attorns in favour of the mortgagee, cannot deny his title to the property. The authority did not touch the subject, as to whether a tenant who attorns in favour of the mortgagee, loses his right to redeem the property as a tenant under the mortgagor. As against the above authority, a mere reference to section 91 of the Act makes it clear that any person who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same, may redeem the mortgage, or institute a suit for redemption of the same. There is no dispute that the plaintiff-respondent was a tenant under the mortgagor at the relevant time, and the mere fact that he agreed to pay certain amount to the mortgagee under a compromise arrived at in Court, would not wash off his status as a tenant, nor can it be said, as was held by the trial. Court, that his rights as a tenant remained in abeyance after the attornment. No provision of law or authority has been cited in support of the proposition that a tenant loses his status in such a contingency. The finding of the lower appellate Court in this behalf is quite correct and is, therefore, affirmed.

The only other contention of the learned counsel for the appellant is that as the respondent had attorned in respect of the ground floor of the property only, he could not seek redemption of the mortgage relating to the whole of the building. This contention is also bereft of force. The mortgage cannot be split up in the manner, as proposed by the learned counsel. Apart from this, a person who has a right to redeem the mortgage, can certainly cairn redemption in respect of the whole of the property. The observation of R. S. Narula Chief Justice in Padma Wati v. Hans Raj and others 1976 P.L.R. 919) in this behalf, may be noticed with benefit.

No other point has been argued in this appeal, nor does the same arise. The appeal is dismissed, but with no order as to costs.