A usufructuary mortgagee is a 'landlord' within the definition of Clause (h) of Section 3 of the Act and is entitled to claim possession of the premises for personal occupation under Part II of the Act.

( 1 ) THE question of law that calls for decision by us reads thus : -"whether a usufructuary mortgagee is a landlord for purposes of Part-ll of the Karnataka Rent Control Act, 1961?"

( 2 ) THE facts leading to the controversy may be recapitulated : the jurisdictional HRC Revenue Inspector, vide his report dated 24-8-1981, intimated the vacancy of premises No. 24 (upstairs), Sri Subramanya Temple Street, v. V. Puram, Bangalore-4. Thereafter the vacancy was notified by the House rent Controller suo motu in HRC. ALT. 709/81. A notice under Sec. 8 (1) (a) of the Karnataka Rent Control Act, 1961, (hereinafter referred to as the Act), was also issued to Smt. Kousalya Bai the owner of the premises. In the meanwhile, the writ-petitioner V. Vijendra also reported the vacancy of the premises. The vacancy was notified in HRC. ALT. 758/ 81. The petitioner was also served with notice under Sec. 8 (1 ) (a) of the Act. The claim of the petitioner for self occupation was on the ground that he is the mortgagee in possession and that the premises should be allotted in his favour for self-occupation. Respondent-3 was one of the applicants. The Rent Controller, after enquiry, allotted the premises is dispute in favour of respondent No. 3. Feeling aggrieved from the order of the rent Controller, the petitioner preferred an appeal. The Special Deputy Commissioner who heard the appeal did not find any merit and consequently, vide his orcer dated 30-1-1982, dismissed the same. Still dissatisfied, the petitioner filed the present writ petition calling in question the legality and propriety of the orders of the Rent Controller and the special Deputy Commissioner.

( 3 ) THE writ petition came up for preliminary hearing before a learned single Judge of this Court on 12-2-1982. After hearing the learned counsel appearing for the petitioner, the learned Judge dictated an order rejecting the writ petition in view of a Division Bench judgment of this Court in Subramanyaswamy v. Deputy Commissioner (1981-1 Kar. L. J. 451) wherein it is held that a usufructuary mortgagee of a premises is not a landlord within the meaning of that expression used in Sec. 5 of the Act and therefore he could not seek permission of the Rent Controller for self-occupation. Before the order v as transcribed and signed, another decision reported in aswatharamaiah v. Spl. Deputy Commissioner (1977-1 Kar. L. J. 332) came to the notice of the learned Judge, wherein a teemed single Judge has held that a mortgagee in possession steps into the shoes of the landlord and has to be regarded as landlord for the purposes of the Act and he was entitled to seek permission for self-occupation of the premises in respect of which he was a usufructuary mortgagee just as the owner could seek similar permission. In view of the said judgment, the learned Judge felt that the matter required further consideration. Accordingly he directed that the writ petition be posted for being spoken to After hearing again the learned counsel appearing for the petitioner, the learned judge recalled his order dated 12-2-1988 and directed issuance of Rule Nisi. The learned Judge further referred the writ petition to a Division Bench under Sec. 9 of the Karnataka High Court Act. Thereafter the matter came up for hearing before a Division Bench, and, finding that the decision in Subramanyaswamy's case requires reconsideration, the Division bench referred the aforesaid question of law to be decided by a Full Bench. That is how we are seized of the matter.

( 4 ) WE have heard the learned counsel for the parties at length. It is contended by the learned counsel for the petitioner that the usufructuary mortgagee of the premises is the landlord thereof as defined in clause (h) of Section 3 of the act, that a usufructuary mortgagee for all intents and purposes is a landlord and that he could legally claim the premises which fall vacant for his personal use and occupation. On the other hand, Mr. R. Gunashekh