Judgment

Shah, J.-The short question involved in this appeal is whether the lease executed in favour of Abraham Cheriyan, husband of the mortgagee would survive after the execution of the mortgage deed. In our view from the evidence on record, it is apparent that parties expressly saved the lease hold rights. The lessee was not party to the mortgage deed and there is no evidence on record from which it can be inferred or implied that the lessee surrendered his lease hold rights. It is well established law that unless there was a surrender of lease hold rights at the time of execution of the mortgage, mortgagor would not be entitled to obtain delivery of physical possession of property on redemption of mortgage.

2. The relevant facts for deciding the aforesaid question are as under :-

By a document dated 12th June, 1932 for the suit proper owner executed a lease deed in favour of Abraham Cherian. Thereafter on 21st Septem­ber, 1935 (5th Kanni 1109) (Exb. 2) usufructurary mortgage deed was executed in favour of Smt. Sosamma, wife of Abraham Cherian. Addition­al mortgage deeds were executed on 30th August, 1935 (Exb. P. 10) and 8th February, 1939 (Exb. P. 1). Lessee, Abraham Cherian died