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1953 Supreme(P&H) 25
PUNJAB & HARYANA HIGH COURT
D.Falshaw and Kapur JJ.
Balkishan
Versus
Baldeo Kumar
Second Appeal No. 456 of 1948,
Decided On : MAY 6, 1953
The rule of damdupat does not apply to a mortgage with possession, and the tenants of the mortgagee are not protected under the Punjab Rent Restriction Act, 1949.
Headnote:
REDEMPTION SUIT - RULE OF DAMDUPAT - RENT RESTRICTION ACT - APPLICABILITY TO TENANTS OF MORTGAGEE - PUNJAB RELIEF OF INDEBTEDNESS ACT, 1936, SECTION 30 - PUNJAB RENT RESTRICTION ACT, 1949, SECTIONS 2(I), 13(1), 13(2), 2(C) - TRANSFER OF PROPERTY ACT, 1882, SECTION 111.
Fact of the Case:
Plaintiffs filed a redemption suit against the mortgagee and his tenants. The trial court decreed the suit and allowed redemption on payment of the principal amount plus interest, cost of improvements, and interest thereon. On appeal, the decree was slightly varied, and the amount for redemption was reduced. The plaintiffs appealed, arguing that the rule of damdupat applied and that the tenants of the mortgagee were not protected under the Rent Restriction Act.
Finding of the Court:
The court held that the rule of damdupat did not apply as there was no debt as defined in Section 7 of the Punjab Relief of Indebtedness Act, 1936. The court also held that the tenants of the mortgagee were not protected under the Punjab Rent Restriction Act, 1949, as the relationship of landlord and tenant did not exist between the mortgagor and the tenants of the mortgagee.
Issues: 1. Whether the rule of damdupat applies to the facts of the case. 2. Whether the tenants of the mortgagee are protected under the Punjab Rent Restriction Act, 1949.
Ratio Decidendi: 1. The rule of damdupat does not apply as there is no debt as defined in Section 7 of the Punjab Relief of Indebtedness Act, 1936. 2. The tenants of the mortgagee are not protected under the Punjab Rent Restriction Act, 1949, as the relationship of landlord and tenant does not exist between the mortgagor and the tenants of the mortgagee.
Final Decision: The appeal was allowed, and the decree of the lower court was varied to the extent that the Rent Restriction Act would be no protection to the tenants of the mortgagee against the rights of the mortgagor and the decree for redemption.
Kapur, J.
1. This is an appeal against an appellate decree of the learned Additional District Judge of Amritsar varying the decree of the trial Court in a redemption suit.
2. Pandit Rikhi Kesh on 22-10-1928 mortgaged the house in dispute in favour of Master Bodh Raj for Rs. 2500/-. The interest agreed upon was 12 per cent, per annum which was to be raised after two years to Rs. 1/4 per mensem, the mortgage being with possession. On 15-3-1945 the plaintiffs who are the sons and widow of the mortgagor brought a suit for redemption making the mortgagee and his tenants as party defendants. The; plaintiffs relied on the rule of damdupat also. Several pleas were raised but it is not necessary to decide them. The trial Court decreed the plaintiffs suit and allowed redemption on payment of Rs. 3,884/- being the principal amount plus interest, plus cost of improvements and interest thereon at 7 1/2 per cent, per annum. An appeal was taken-to the Additional District Judge and there the decree was only slightly varied and the amount on payment of which the redemption was allowed was reduced to Rs. 3,883/6/-. It was also held that in this suit the tenants of the mortgagee could not be-ejected.
3. In this appeal two points have been argued by Mr. Shamair Chand (1) that the rule of damdupat applies and (2) that there is no protection to the tenants of the mortgagee and the decree so far as it relates to the tenants is erroneous.
4. In my opinion the rule of damdupat has no , application to the facts of this case as there is no debt as defined in Section 7, Relief of Indebtedness Act and therefore Section 30 of that Act has no application to the facts of this case.
5. The next point raised is as to the correctness of the decision of the lower Courts in regard to the tenants of the mortgagee. The contention of the tenants was that they are protected under the Rent Restriction Act. Tenant in Section 2 (i) of that Act is defined as follows :
"tenant meansany person by whom or on whose account rent is payable for a building or rented land & includes a tenant continuing in possession, after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building or rented land by its tenant unless with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, cartstand or slaughterhouse or of rents for shops has been farmed out or leased by a municipal town or notified area committee."
6. By Clause (1) of Section 13 it is provided :
"A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section."
Clause (2) provides that " a landlord who seeks to evict his tenant" must apply to the Controller appointed under the Act, and this clause sets out the circumstances under which the Controller can give-a direction for possession. In Clause (c) of Section 2 landlord means
"any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf, or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner authorised under the Act, and every person from time to time deriving title under a landlord."
7. Thus when a building is under mortgage with possession, the tenants under the mortgagee are not tenants of the owner the mortgagor - nor is the mortgagor the landlord qua such tenants, and therefore the provisions of the Punjab Rent Restriction Act do not apply in their favour and no restriction placed by this Act can in any way affect the rights of the owner qua the tenants. If the mortgage is redeemed and the owner becomes entitled to
