The acceptance of a pure usufructuary mortgage by a tenant from his landlord implies the surrender of the pre-existing tenancy. On redemption of the mortgage, the mortgagor is entitled to get back actual possession from the mortgagee and the pre-existing tenancy does not revive.

( 1 ) THE main question in this Letters patent Appeal is whether a tenant who accepts from his landlord a pure usufructuary mortgage of the same house, in which he is the tenant, is entitled to continue in its possession even after the mortgage is redeemed. The learned single Judge has answered this question in the affirmative.

( 2 ) RAMA Rao appellant mortgaged the suit house on September 8, 1951 in favour of Pahumal. This was a pure usufructurary mortgage. Pahumal was already in possession of the suit house as Rama Rao's tenant. The present sun was resisted by Rama Rao for redemption. (It is not necessary to state the facts relating to proceedings under Section 83 of the Transfer of Property Act, prior to the suit ). In the present suit a decree for redemption has been passed in favour of Rama Rao, but at the same time it has been directed that the defendant Pahumal would continue in possession as tenant, in as much as his tenancy has revived simultaneously with the redemption.

( 3 ) THREE decisions have been relied on by the learned single Judge: Jagmohan Ahir v. Ram Kishen Misir, AIR 1936 Oudh 322, Kallu v. Diwan, ILR 24 All 487 and Kashi v. Durga, 12 Ind Cas 734 (Nag ). All these cases support the view taken by the learned single Judge, although they were cases relating to agricultural tenancies. ( 4 ) IT is urged by Mr. Gupta that under Clause (b) of Section 60, Transfer of property Act, the mortgagee is, in every event, entitled to return the possession of the property to the mortgagor. This does not carry the matter any further.

( 5 ) IT is then argued that Section 101 of the Transfer of Property Act is exhaustive of the cases where there would be no merger, so that where a tenant accepts a mortgage, tenancy rights merge in the mortgagee rights. We cannot accept this to be the negative aspect of Section 101 of the Transfer of Property Act.

( 6 ) HOWEVER, it seems clear to us that the relationship of landlord and tenant came to an end when the usuffuctuary mortgage was effected. It is stated in the mortgage deed that the mortgagor is in possession and occupation of the house (Qabiz wa Mutasarrif), that he is delivering possession to the mortgagee, that the mortgage is possessory (Rahan-bil-Qabz), that the mortgagee will not be entitled to any interest nor will the mortgagor be entitled to rent, and that on redemption only the principal amount of Rs. 1000/-will be repaid by the mortgagor to the mortgagee, it is, therefore, clearly a pure usufructuary, mortgage.

( 7 ) WHEN the defendant agreed to be the usufructuary mortgagee he necessarily accepted to alter the nature ot his possession. This new relationship was not thrust on the tenant, nor did it come into being by operation ot law. It was by the mutual will and consent of both the parties. The transaction was bilateral, in our judgment, physical possession of the mortgagee, qua a pure usufructuary mortgagee, was inconsistent with the continuance of his earner possession as tenant of the mortgagor. The two could not go together, as they could jn the case of a tenant accepting a simple mortgage. This position coupled with the recitals in the mortgage deed leave no manner of doubt that Pahumal impliedly surrendered his tenancy rights to the landlord, who then became free to mortgage the house with possession. To put it differently, when the usufructuary mortgage was effected, the pre-existing tenancy came to an end. It is urged by Shri Inamdar that the tenancy did not extinguish, but merely remained in abeyance or dormant during the period of mortgage. We are unable to accept this contention. There is no covenant in the mortgage deed to that effect. Nor is there anything in the mortgage deed to show that the parties contemplated to review, in the event of redemption, the pre-existing relationship of landlord and tenant.

( 8 ) SECTION 111 of the Transfer of Property Act enumerates the modes of determination of tenancy. Remarkably 'express surrender' and 'imp