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PETITIONER: POLAMMARASETTI VARANA VENKA SATYANANARAYANA

       Vs.

RESPONDENT: SUDDHA APPARAO NAIDU (DEAD ) AND ORS RESPONDENT

DATE OF JUDGMENT:       18/03/1997

BENCH: G.N. RAY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  is directed  against the  judgment of  the Andhra Pradesh  High court  dated April  16,1987  passed  in second appeal  No. 308  of 1981. By the impugned  judgment , the High  court has dismissed the second appeal preferred by the appellant.  One Bheemarasetti  Adinarayan Naidu  was the plaintiff in  Suit No.  O.S. No  55 of  1967 in the Court of District Munsif,  anakapalli which  was renumbered as OS No. 260 of  1969 in  the court  of  principal  district  Munsif. Yellamanchill. Such suit was instituted by the plaintiff for redemption of  usufructuary mortgage  created by  deed dated December 11,1946  (Ext. A-1)  on the  basis of the sale deed dated Saptember  19, 1960  (Ext.A-2) under  which  the  said plaintiff purchased the property with a right to redeem. The appeliant was  the second  defendant in the said suit. There is no disoute that at the time of creating such usufructuary mortgage in  1946, the  appellant was  continuing as a lease and the lease was to expire in 1948. The appellant contended that his  right   as   lessee  continued  despite  the  said usufructuary mortgage and in view of such right continuing , he had  acquired non-evictable  right and,  therefore, there was no  question of  taking over  possession of the property from him by redemption of mortgage . Such contention has not been accepted  either by  the court  below or  by  the  High Court.      M.K. Ram  Kumar,  learned  counsel  appearing  for  the appellant  has   contended  that   simply  on  execution  of usufructuary mortgage  the right of the lessee does not come to an  end unless  and until it can be established that such lease hold  interest had  been termminated or the lease hold interest had been termminated or the lease hold interest had been surrendered either by exoress conduct of the parties or by necessary  implication flowing from the deed of mortgage. Save as  aforesaid, it  must be  held that  the  lease  hold interest continues  notwithstanding creation of usufructuary mortgage, In  support of  such contention. Reliance has been made to  the decision  of this court in Gopalan Krishnakutty vs. Kunjamma Pillai Sarojini Amma & ors ( 1996 (3) SCC 424). After taking  into consideration  of the  decisions of  this Court in Narayan Vishnu Hendre Vs Babuao Savaiaram

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Kohawale (1995(6) SCC 608) and in Gambangi Applaswamy Naidu vs.  Behara Venkataramanayya  Patro (1984(4)  SCC 382) and  in   Shah  Mathuradas   Maganlal  &   Co.  Vs.  Nayabba Shankarappa Malave  (1976 (3)  SCC 660)  it has been held in Gopalan Krishnakutty’s  case that simply on the execution of the usufructuary  martgage deed.  surrender of tenancy right cannot be  inferred but the question of continuance of lease hold interest  upon execution  of usufructuary  mortgage  is required to be decided on the facts situation of the case.      Mr. Ram  Kumar has submitted that there is no automatic merger of  interest of the lessee with that of the mortgagee and in the absence of proof of surrender by the defendant of his lease  hold interest  and to  hold  only  the  right  of mortgagee, the  plaintiff is  not entitled  to automatically claim possession  of the  lease hold  premisses by redeeming the mortgage.      We have  taken into  consiceration  the  mortgage  deed executed in  1946 .  In our  view. a clear intention of only retaining the  mortgage’s interest is to be inferred in view of the  specific statement that on redemption, the mortgagee should deliver  possession to  the mortgage. we may indicate that the expression to that effect used in the mortgage deed has been  noted by  the courts  below. We  may also indicate that there  is no  indication in the mortgage deed as to how the rent  payable by  the mortgagee  deed lessee  was to  be adjusted between  the parties.  The absence  of any  mode of adjustment of  lease hold  rent  implies  that  it  was  not intended that  despite the  said mortgage.  Parties intended that the lease hold interest was to continue. It may also be indicated here  that lease  hold interest  was to  expire in 1948. In  the absence  of any payment of rent for such lease hold interest  and acceptance of such payment after expiring of the period of lease it can not also be contended and that there was  a case  of holding  over by  the lessee.  In  the aforesaid circumstances.  The finding  by the  Courts  below that the  lease hold  interest had  come to  an end  and the plaintiff was entitled to the redemption of the mortgage and to take delivery of the properties under these mortgage deed cannot be held to be unjust or improper. we therefore do not find reason  to interfere  with the impugned judgment of the High Court.  The appeal,  therefore, fails and is dismissed. No costs.