Lease gets merged in the mortgage.

These are two connected appeals arising from the decrees and judgment of the learned Subordinate Judge of Ottapalam in A.S. Nos. 97 and 08 of 1950 modifying the decrees and judgment of the learned District Munsif of Chowghat, in O.S. Nos. 299 and 127 of 1949.

The facts are: - Exhibit B-2 is a copy of the pattamchit executed by the defendants’ predecessor Itteeri in favour of the then Karnavan of the plaintiffs’ family and a junior member. That document recites that the properties were already in the possession of Itteeri as a lessee and that he was taking Verumpattam lease with the liability to pay an annual rent of 4572 paras of paddy. Exhibit B-3 is a possessory mortgage deed executed by the Karnavan and a junior member of the plaintiffs’ tarwad to Itteeri’s son Velu in respect of the properties. It recites that the properties were possessorily mortgaged to Velu for a sum of Rs. 250. It also recites that the properties were in the possession of Velu as a tenant The document finally states that out of the pattam of 45 paras and 3¾ narayams of paddy, 35 paras might be appropriated by Velu towards the interest on the mortgage amount and that the balance of 10 paras 3¾ narayams should be paid to the mortgagors. The term of the mortgage was one year. After that period the mortgagee was to surrender possession of the properties. Provision was also made for setting off the amount due from the mortgagee against the mortgage amount at the time when possession had to be surrendered. These are undisputed facts. On the mortgagors seeking to redeem the property, because by operation of Madras Act IV of 1938 as subsequently modified by Act XXIII of 1948, the mortgage had become extinguished, they were met with the contention that delivery of possession could not be given because the fact of a tenant’s taking a mortgage of land comprised in his holding from his landlord does not of itself extinguish the tenancy by merging the rights of the tenant in those of the mortgagee and the effect of such a mortgage on the tenants’ rights would be merely that they would be in abeyance and that when the landlord redeemed the mortgage, the parties would revert to their former position, and the landlord would not be entitled to get possession of the land except by ejecting the tenant in due course of law. In other words, it is clear that the mortgagors want to evict these defendants and take possession of the property and the defendants are setting up fixity of tenure in order to defeat that claim of the plaintiffs.

Both the lower Courts accepted this contention of the defendants which is based upon the judgment of the Allahabad High Court in Kallu v. Diwan1.

The defeated mortgagors prefer these appeals on the ground that the prior leases got terminated with the mortgage and that the lessee’s interest merged in the mortgage right at its acquisition as a large and superior interest, and secondly that on accepting the mortgage there was an implied surrender of the leasehold. This contention is based upon a recent decision of the Travancore-Cochin High Court in Velu v. Lakshmi2.

Therefore, the short point for determination before me is whether the contention of the defendants which has been accepted by the lower Courts or the contention put forward before me by the plaintiffs is correct.

I have no hesitation in accepting the contention of the plaintiffs advanced before me based upon the decision in Velu v. Lakshmi2. It is a case almost identical with the facts of the present case. In fact it is one of the rare instances where the learned advocate has been able to hand over to me a decision on all fours with the appeals under consideration. In that case the facts were: Kidangaserry Tharanananellur Illom, the jenmi, leased on verumpattom an item of land to Kurunhikkattail Manickan and another item to Manali Makkotha. During the subsistence of these leases the lessor in the year 1080 executed an usufructuary mortgage and in 1092 a purankadam deed to Manick