1981 Supreme(MP) 122

B. C. Varma, J.
Naseeh Jahan v. Inamulla Khan.
S. A. No. 634 of 1974 (J); Decided on 21-2-1981.

Headnote:(1) Transfer of Property Act, 1882 -- S. 58 (d) -- usufructuary mortgage what is -- deed clearly reciting handing over possession under mortgage -- even if mortgagee in possession prior to execution of deed his possession becomes that of mortgagee after execution of deed.

        (2) Transfer of Property Act. 1882 -- S. 62 -- mortgagee is under all obligation to hand over possession on redemption.

        (3) Deed -- recitals of -- mortgage deed -- clear recitals regarding handing over possession -- under mortgage -- it is usufructuary mortgage.

        Relevant facts are that the house in question was owned by deceased Kifayatullahkhan, whose legal representatives are the respondents plaintiffs. The appellants husband Bashirullah had been in occupation of the house since about 1951-52 and used to run a hotel on the ground floor. Kifayatullah obtained a loan of Rs. 1,500/- from Bashirullah somewhere in 1958 and later for that very consideration the house was mortgaged with the appellant. The mortgage deed is Ex. D-1. The loan secured under this mortgage was Rs. 1,500/-. The respondents as heirs of Kifayatullah brought the suit for redemption of the mortgage agreeing to pay the mortgage debt. The prayer for deLi"Very of possession was also made treating the mortgage as usufructuary. Both the Courts below have decreed redemption and have directed the appellant to deLi"Ver vacant possession of the house to the respondents.

        The claim for deLi"Very of possession was resisted before the Courts below as also before me by the appellant on the ground that she was never put in possession pursuant to the mortgage, that her husband Bashirullah was in possession of the house in question as tenant of Kifayatullah since the year 1951-52 and that she has been Li"Ving in the house as his wife. It was, therefore, submitted that on redemption only the status quo obtaining on the date of the mortgage can be restored and no further direction as to deLi"Very of possession could be made.

        Held : The contents of the mortgage deed Ex. D-1 show that on 28-6-1958. Kifayatullah borrowed a sum of Rs. 1,500/- from appellants husband Bashirullah. According to that document, Bashirullah was put in possession of the house in lieu of that loan. That document does not speak that Bashirullah was in occupation of the house in suit at any time prior to that date either as tenant or otherwise. It, therefore, appears that Bashirullah was permitted to occupy the house in lieu of that loan. The mortgage deed further recites that for the same consideration the mortgage deed has been executed in favour of the appellant. The further recitals in the document show that the mortgagee was put in possession of the mortgaged property, namely the house in question, pursuant to the mortgage.

        The decision in Ram Khilawan v. Ghulam Hussain (AIR 1933 Oudh 35) relied upon by the learned counsel for the respondents appears to be in point. Considering a case of usufructuary mortgage. the Division Bench in that case observed that the requirement of law are satisfied if the mortgagor deLi"Vers such possession to the mortgagee as tile mortgaged properly is capable of on the date of the mortgage and even actual physical deLi"Very is not necessary. Thus in the present case even if it is held that the appellant was already in possession of the mortgaged property along with her husband even before the execution of the mortgage deed Ex. D-1, the recitals therein show that her possession on and from the date of the mortgage became that of the mortgagee. Since she was already in occupation of the mortgaged property, it was not necessary that it should first have been got vacated and then the mortgagee should have been put in possession. In my opinion, her continuance in possession after the date of the mortgage was only qua mortgagee and on redemption, she was bound to deLi"Ver possession of the suit house to the mortgagor respondents. AIR 1919 Oudh. 36. AIR 1920 Lah,. and AIR 1958 A. P. 541 distinguished, AIR 1933 Oudh. 35 relied on. Appeal dismissed.