A mortgagee in possession cannot create a tenancy that will continue beyond the redemption of the mortgage, unless the mortgagor has agreed to the tenancy or the tenancy is created in the ordinary course of management.

P.K. Banerjee, CJ.-This Full Bench Reference was made by Hon’ble Mr. Justice S. C. Agrawal in S. B. Civil Second Appeal No. 7 of 1981.-The Hon’ble Judge formulated the substantial question of law to be decided in the Full Bench in the following terms :-“Whether a tenant of a mortgagee is entitled to the protection of the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 against the mortgagor after the redemption of the mortgage?” In the said order of reference Mr. Justice Agrawal referred to two cases namely Ghamandi Rarn vs. Shanker Lal, 1965 RLW 333 : (AIR 1966 Raj 19) and Sachal Mal Parasrarn vs. Mst. Ratan Bai AIR 1972 SC 637. His Lordship felt that the definition of landlord’ contained in the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 (hereinafter referred to as ‘the Act of 1950’) is wider than that of in the East Punjab Urban Rent Restriction Act. 1949. In view of the first Division Bench judgment in Gharnandi Rarn vs. Shanker Lal 1965 RLW 333 : (AIR 1966 Raj 19) (Supra) and subsequent decision of the Supreme Court as herein before stated his Lordship Mr. Justice Agarwal referred the case to the Chief Justice for formation of a larger Bench.

2. A similar question arose before Mr. Justice G. M. Lodha in S. B. Civil Revision No. 619 of 1982. Mr. Justice Lodha also referred the matter to the Chief Justice for reference to the Full Bench on the same term.

3. On the basis of these facts the Full Bench was constituted. Before we refer to the questions raised, it is convenient for us to set out the definitions of ‘landlord’ and ‘tenant’ as appearing in the Act of 1950 in Section 3 (iii) and (vii) in the following terms :-“(iii) ‘landlord’ means any person who for the time being is receiving or is entitled to receive the rent of any

premises, whether on his own account or as an agent, trustee, guardian or receiver or any other person or who would so receive or be entitled to receive the rent if the premises were let to a tenant; it includes a tenant in relation to a sub-tenant.” “(vii) ‘tenant’ means--

.(a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and

.(b) in the event of death of the person as is referred to in Sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with personal law applicable to him who had been, in the case of premises leased out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family up to his death.” At this stage it is convenient for us to refer to Section 76 of the Transfer of Property Act, which is in the following terms: “76. Liabilities of mortgagees in possession. When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property,--

.(a) he must manage the property as a person of ordinary prudence would manage it if it were his own;

.(b) he must use his best endeavours to collect the rents and profits thereof

.(c) he must not commit any act which is destructive or permanently injurious to the property; It is not necessary for us to refer to other portions of the section in view of arguments advanced before us. I will also refer to Section 13 of the Act of 1950, which is in the following terms; “13. Eviction of tenants--(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied It is not necessary for us