POLAMMARASETTI VARANA VENKA SATYANARAYANA versus SUDDHA APPARAO NAIDU (DEAD) AND ORS

Citation: [1997] 3 S.C.R. 29 · Decided: 18-03-1997 · Supreme Court of India · Bench: G.N. RAY, G.T. NANAVATI · Disposal: Dismissed

Judgment (excerpt)

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POLAMMARASETTI VARANA VENKA SATYANARAYANA 
A 
v. 
SUDDHA APPARAO NAIDU (DEAD) AND ORS 
MARCH 18, 1997 
[G.N. RAY AND G.T. NANAVATI, JJ.) 
B 
M01tgage: 
Usuftuctua1y 11101tgage--Suit for redemption-Rights of lessee-Lessee 
contending that he had acquired non-evictable right and could not be dispos-
C 
sessed by redemption of 11101tgage--Held, the finding of the courts below that 
the lease hold illterest had come to an end and the plaintiff was entitled to 
redemption of the mortgage and to take possession of prope1ties under the 
mortgage deed cannot be held to be unjust or improper. 
Gopalan Krishnakutty v. Kunjamma Pillai Sarojini Amma & Ors., D 
[1996] 3 SCC 424; Narayan Vishnu Hendre v. Babuao Savalaram Kohawale, 
[1995] 6 SCC 608; Ga1nbangi Agglaswa1ny Naidu v. Beltara Venkata-
ramanayya Fatro, [1984] 4 SCC 382 and Shah Mathuradas Madan/al & Co. 
v. Nayappa Shankarappa Malave, [1976] 3 SCC 660, cited. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1738 of E 
1987. 
From th; Judgment and Order dated 16.4.87 of the Andhra Pradesh 
High Court in S.A. No. 308 of 1981. 
K. Ram Kumar, C. Balasubramaniam, Y. Subba Rao and Ms. Asha F 
Nair for the Appellant. 
T.L. Vishwanatha Iyer and M.K.D. Namboodri for the Respondents. 
The following Order of the Court was delivered : 
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 Adinarayana Naidu 
G 
was the plaintiff in Suit No. O.S. No. 55 of 1967 in the Court of District H 
29 
30 
SUPREME COURT REPORTS. 
(1997] 3 S.C.R. 
· A 
Munsif, Anakaballi which was renumbered as OS No. 260 of 1969 in the 
Court of Principal District Munsif, Yellamanchili. 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 
September 19, 1960 (Ext. A-2) under which the said plaintiff purchased the 
B property with a right to redeem. The appellant was the second defendant 
in the said suit. There is no dispute that at the time as creating such 
usufructuary mortgage in 1946, the appellant was continuing as a lessee 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 
C 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. 
Mr. K. Ram Kumar, learned counsel appearing for the appellant has 
D 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 terminated or the lease hold interest 
had been surrendered either by express 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 not-
E withstanding creation of usufructuary mortgage. In support of such conten-
tion, reliance has been made to the deciEion of this Court in Gopalwi 
Krishnakutty v. Kunjamma Pillai Sarojini Anuna & Ors., [1996) 3 SCC 424. 
After taking into consideration of the decisions of this Court in Narayan 
Vishnu Hendre v. Babuao Savalaram Kolwwale, [1995] 6 SCC 608 and in 
p Gambangi Applaswamy Naidu v. Vankataramanavya Fatro, [1984] 4 SCC 
382 and in Shah Mathuradas Madanlal & Co. v. Nayappa Shankarappa 
Malave, [1976) 3 SCC 660 it. has been held in Gopalan Krishnakutty's case 
that simply on the execution of the usufructuary mortgage deed, surrender 
of tenancy right cannot be inferred out the question of continuance of lease 
hold interest upon execution of usufructuary mortgage is required to be 
G 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 this lease hold interest and to hold only 
H the right of mortgage, the plaintiff is not entitled to automatically claim 
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POLAMMARASETTIVARANA VENKASATYANARAYANAv. S.A.NAIDU 31 
possession of the lease hold premises by redeeming the mortgage.

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