Lease and mortgage cannot merge.

1. This Appeal Suit No.637 of 1987 and Transfer Appeal No.1086 of 1987 arise out of a common judgment and decree dated 19.3.1987 made in O.S.Nos.501 of 1983 and 18 of 1984 respectively. O.S.No.501 of 1983 was preferred by the appellant herein for specific performance of the agreement dated 27.2.1982 and O.S.No.18 of 1984 was preferred by the respondents herein for declaration and possession of the very same property for which specific performance was prayed for by the appellant in the other suit.

2. The parties to the appeals are herein after referred to by their respective status as mentioned in the suit in O.S.No.501 of 1983. As such the appellant is the plaintiff and the respondents are defendants 1 to 5.

3. The plaintiff claims that his wife and the first defendant are cousin sisters, that the suit schedule property situated in S.F.No.508/2 of Komarapalayam, measuring to an extent of 2.00 acres came to the share of the first defendant, that the plaintiff was cultivating the suit lands as cultivating tenant, that to get rid of the plaintiff from the suit schedule property, a suit in O.S.No.639 of 1972 was filed by the defendants by setting up one Thiru D.Subramaniya, as though he was the cultivating tenant, that when that issue came up for consideration in W.P.3600 of 1974 in this Court, the plaintiff was directed to establish his right of tenancy in O.S.No.639 of 1972, that the first defendant, who subsequently got substituted as a second plaintiff in the said suit, allowed the suit to get dismissed for default, that thereafter, the plaintiff filed O.S.No. 422 of 1980 for a declaration, to declare the status of the plaintiff as cultivating tenant, that subsequently by virtue of the agreement, dated 27.2.1982, that suit was also not pressed by the plaintiff, that the sale price as per the agreement was fixed at a sum of Rs.50,000, that a sum of Rs.4,000 was paid as part performance of the agreement on the date of agreement itself, that it was also agreed to pay a further sum of Rs.6,000 within 15 days while the balance amount was to be paid within seven months time, that further payment of Rs.6,000 was also made by the plaintiff and continue to retain possession of the suit schedule property, that there was a reference to a will dated 2.4.1944, in the agreement, that by virtue of the recitals contained in the will under which certain Samaradanai rights were to be performed by the defendants from and out of income of the various properties, that since the plaintiff wanted to get clarified about these rights to be performed by the defendants vis-a-vis the income from the suit schedule property, he had to approach the power of attorney holder of the vendors who was also a leading member of the Bar at Trichy, that he was awaiting clarifications from the said power agent, that though the plaintiff received notice dated 18.9.1982 and 1.10.1982, as he was laid up with jaundice for some time and also approached the power agent for getting necessary clarifications about the possible incumbrance under the will dated 2.4.1944, that as the said power agent also assured the plaintiff that he would get necessary clearance from the Court by filing an application under the Indian Trust Act, the notice could not be replied, that the plaintiff was ready with the cash and he was ready and willing to get the sale deed executed, that as the plaintiff was awaiting clearance of title of suit properties and details of other properties of the defendants out of which Samaradanai rights were to be performed, some time was taken and ultimately, when the plaintiff came to know that the power agent of the defendants was not interested in selling the property, but was taking efforts to evict the plaintiff, the plaintiff was obliged to file the suit praying for decree for specific performance of the agreement dated 27.2.1982.

4. Inthe written statement filed in O.S.No.503 of 1983 as well as, as per the plaint averments contained in O.S.No. 18 o