Judgment

KIRPAL

( 1 ) THIS is an appeal by special leave against the judgment and order of the High Court of judicature at Bombay, dated 11-12-1987 in Second Appeal No. 643/81 and the main question which arises for consideration is whether there was an implied surrender of the tenancy by the appellants-defendants in favour of the respondent-plaintiff at the time when the respondent-plaintiff executed a mortgage of the premises in favour of the appellants.

( 2 ) THE father of the appellants-defendants, namely Vishnu Malba Hendre (hereinafter referred to as Vishnu) was a tenant in respect of the front portion of House No. 115, Rawiwar Peth, Phaltan. The said house was owned by Baburao Savalaram Kothawale, the original plaintiff, now represented by his legal heir. The said house was mortgaged by the respondent-plaintiff in favour of Vishnu by three different deeds which were styled as conditional sale-deeds. By the first deed dated 16-4-1952 for a consideration of Rs. 2,000. 00 the tront portion of the house was transferred and by the other two deeds, possession of the rear and the middle portions were transferred for Rs. 1,200. 00 and Rs. 2,000. 00 respectively. The documents, inter al