PARMAR KANAKSINH BHAGWANSINH (DEAD) BY L.RS. versus 1. MAKWANA SHANABHAI BHIKHABHAI AND 2. MAKWANA PRABATBHAI BHIKHABHAI

Citation: [1994] SUPP. 6 S.C.R. 423 · Decided: 08-12-1994 · Supreme Court of India · Bench: R.M. SAHAI · Disposal: Dismissed
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Judgment (excerpt)

PARMAR KANAKSINH BHAGW ANSINH (DEAD) BY L.RS. 
A 
V. 
1. MAKWANA SHANABHAI BHIKHABHAI AND 
2. MAKW ANA PRABATBHAI BHIKHABHAI 
DECEMBER 8, 1994 
[R.M. SAHAI AND N. VENKATACHALA, JJ.] 
B 
Transfer of Property Act, 1882--Section I II-Lease of immovable 
property-Mortgage by conditional sale-Whether the lease-hold of a 
tenant in a property would merge in mortgage security as would debar a C 
tenant from desisting the suit of landlord mortgagor for recovery of 
possession of such property by obtaining a decree for redemption of the 
mortgage-Held: No. 
Bombay Tenancy and Agricultural Lands Act, 1948: Sections 70, 85 
and 85-A Suit for redemption filed in Civil Court -opposite party claiming D 
to be tenant and seeking reference to Mamlatdar for a finding-Whether 
Civil Court decide the issue its/elf-Held: No. 
The appellant-plaintiff filed a suit for redemption of certain 
properties which were mortgaged as security for minoes borrowed by 
the plaintiff from defendant-I under two deeds of mortgage executed in E 
the yeare I961. Respondent-2 had been joined as Defendant-2 in the 
suit on the allegation that he was in possession of the mortgage 
properties. 
Defendants contested the suit claiming that they continued to be 
tenants of the suit properties. It was also claimed that in I962 the F 
plaintiff sold the properties to Defendant-I for a sum of Rs. 4400. 
The Civil Court found that the defendants failed to prove the sale 
in their favour; that the defendants failed to prove the past tenancy; 
and that the mortgages of the suit properties were mortgages by 
conditional sale. The Civil Court made a preliminary decree in favour G 
of the plaintiff for redemption of the suit properties. The defendants' 
appeal before the district Judge was dismissed. 
On second appeal, the High Court set aside the Judgments and 
decrees of the trial Court and the appellate Court relating to the 
tenancy, and remanded the case to the Civil Court directing it to refer H 
423 
A 
B 
c 
424 
SUPREME COURT REPORTS 
(1994] SUPP. 6 S.C.R 
the issue to the Mamlatdar for determination and to stay all further 
proceedings till the issue was decided by the Mamlatdar and thereafter 
proceed to dispose of the suit in the light of the findings recorded by the 
appellate Court. This order of the High Court is challenged in the 
present appeal. 
On the basis of rival contentions, the following question arose for 
consideration : 
1. Does the lease-hold of a tenant (lessee) in a property merge in 
mortgage security if the same property is given by the landlord (lessor) 
to the tenant (lessee) as a mortgage security under a mortgage by 
conditional sale, as would debar the tenant from desisting the suit of 
the landlord-mortgagor for recovery of possession of such property by 
obtaining a decree for redemption of the mortage? 
2. When a plea of tenancy is raised with regard to suit property, an 
agricultural land, by a defendant who claims to be a tenant of such 
property under the Bombay Tenancy and Agricultural Lands Act and 
D ·seeks a reference of that issue by the Civil Court to the mamlatdar 
under the Act for obtaining a finding there on can the Civil Court 
decide such issue by itself and proceed to decide the suit on the basis of 
the finding thereon? 
E 
F 
G 
H 
Dismissing the appeals, this Court 
HELD: 1.1. The lease-hold of a tenant (lessee) in a property does 
not merge in mortgage security of that property, even if it is given to 
him by the landlord (lessor) on a mortgage by conditional sale as would 
debar the tenant from desisting the suit of the landlord mortgagor for 
recovery of possession of such property by obtaining decree for 
redemption of the mortgage. (434 H, 435 A) 
1.2. When the landlord mortgages the lease-hold property of the 
tenant to the tenant himself, he does not part with the right of reversion 
which he has in respect of that property. If that be so, merger of lease-
hold estate in reversion cannot arise, inasmuch as, there cannot be any 
inconsistency of incompatibility in one person being the tenant and also 
the mortgagee of the same property, for in that event instead of the 
tenant paying rent to the landlord he may adjust it against the amount 
claimable by him as a mortgage from the landlord. Moreover, if a 
lessee of a property takes a mortagagee of the same property from the 
landlord, it would be unreasonable to attribute to a tenant the intention 
to surrender the tenancy and to invoke the sophisticated do
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