JUDGMENT

THOMMEN, J.:—This appeal arises from the judgment of the Rajasthan High Court dated April 24, 1986 in S.B. Civil Second Appeal No. 32 of 1986. The High Court, confirming the decrees of the Courts below, held that the appellant had surrendered his possession over the suit property as a lessee upon his lending money on the security of the very same property which was mortgaged to him by the borrower.

2. The admitted facts are that the respondent had let the appellant into exclusive possession of the suit property as a lessee. During the period of the lease, the appellant lent a sum of Rs. 5,000/- to the respondent on the security of the suit property which was mortgaged to. him by the respondent, as evidenced by the mortgage deed dated 19-3-1975. The deed provided that the mortgage was due to expire on 18-3-1980. Accordingly the respondent issued notice to the appellant of his intention to redeem the property. But the appellant refused to surrender possession of the property contending that he was entitled to retain it in his capacity as a lessee. Accordingly the respondent instituted the suit for redemption. All the Courts below, on construction of the mortgage deed, came to the conclusion that the appellant had surrendered his possession as a lessee on his entering into a new relationship with the respondent in terms of the deed of mortgage, and upon redemption of the mortgage, the appellant had no further right to retain possession of the property. The High Court held that the appellant had symbolically surrendered his possession as a lessee, and no rent was, therefore, payable by him under the lease during the period of the mortgage. On redemption of the mortgage, he had no further right or interest in the property and was no longer entitled to retain possession of the same.

3. Annexure A is the English translation of the mortgage deed dated 19-3-1975 which reads:-

".........the upper storey is on rent to you Shri Nemi Chand Jain himself Dhyan Singh Ji Jain, resident of Bundi. Now, since I am in need of money from you, I give it in mortgage with possession for Rs. 5,000/- in figures Five thousand...............

That I have received a sum of Rs.5,000/- and handed over the possession of the aforesaid house to you, Shri Nemi Chand son of Dhyan Singh Ji caste Jain resident of Bundi and have mortgaged the same with you and I shall not get the said house redeemed for a period of 5 years and any time after the period of 5 years, I shall repay your full amount of Rs. 5,000/- to redeem and shallobtain the possession ............. So long as the house will remain mortagaged with you, there shall be no interest of amount to you and no rent of the house.

The interest of the amount and the rent of the house are equal. That I am in need of money on account of the marriage of my daughter. Therefore I have received a sum of Rs. 5,000/- from you, Shri Nemi Chand son of Shri Dhyan Singh Ji caste Jain resident of Bundi and have written with sound and stable mind so that it may be used as and when needed. Written over 4 stamps valued. Rs. 170/-........."

4. The deed shows that the appellant was in possession of the property as a lessee. This is clear from the words "the upper storey is on rent to you". It is not disputed that this was the position. The document further shows that during the period of the mortgage, which was to last 5 years, neither interest nor rent was payable by the parties, both amounts being equal. This shows that the rent was kept alive and it was to be adjusted against the interest. The lease subsisted, though the parties entered into a new relationship of creditor and debtor on the security of the property already in the possession of the appellant as a lessee. The mortgage was usufructuary in character, the possession being already with the appellant. He held the property both as a lessee and a mortgagee.

5. The Courts below misconstrued the document to read that no rent accrued during the period of the mortgage and t