1955 (8) TMI 51 - HC - Indian Laws

Summary

Issues Involved:
1. Obligation of a usufructuary mortgagee to deliver actual possession upon redemption.
2. Estoppel due to eviction proceedings initiated by the appellant.
3. Election of remedies by the appellant.

Detailed Analysis:

1. Obligation of a Usufructuary Mortgagee to Deliver Actual Possession Upon Redemption
The primary issue revolves around whether a usufructuary mortgagee, who has let a tenant into possession after the execution of the mortgage, is obligated to put the mortgagor in actual possession of the property on redemption. The court held that the mortgagor is entitled to actual possession of the property upon redemption, not merely a direction by the mortgagee to the tenant to attorn to the mortgagor. The court stated, "the mortgagor is entitled to insist that khas possession should be delivered to him and not merely such possession as is involved by a mere direction by the mortgagee to his tenant to attorn to the mortgagor."

2. Estoppel Due to Eviction Proceedings Initiated by the Appellant
The second issue concerns whether the appellant is estopped from claiming mesne profits from the first defendant due to the eviction proceedings initiated against the third defendant. The court agreed with the Subordinate Judge that the appellant was estopped from proceeding against the first defendant. The court reasoned that "if the appellant had indicated that he did not propose to recognise the third defendant as his tenant but would proceed only against the first defendant, the latter might certainly have taken steps to recover rents as also possession from his tenant." The court found that the appellant's actions in initiating eviction proceedings against the third defendant constituted an election to treat the tenant in possession as his tenant, thereby precluding any claim against the first defendant for mesne profits.

3. Election of Remedies by the Appellant
The third issue involves the appellant's election of remedies. The court held that the appellant's initiation of proceedings before the Rent Controller against the third defendant constituted an election to treat the tenant in possession as his tenant. The court cited Section 111(c) of the Transfer of Property Act, stating that "a lease of immovable property determines where the interest of the lessor in the property terminates on the happening of any event, by the happening of such an event." The court concluded that the appellant's actions amounted to an unequivocal act showing his choice, which could not be retracted. The court emphasized that "where a man is entitled to one of two inconsistent rights and he has with full knowledge done an unequivocal act indicating his choice of the one, he cannot afterwards pursue the other."

Conclusion
The court dismissed both the Civil Miscellaneous Second Appeal and the Civil Revision Petition. The court found that the appellant was estopped from claiming mesne profits due to his election to treat the third defendant as his tenant and that the first defendant had fulfilled his obligation by issuing notices to the tenant and the mortgagors. The court reiterated that once an election of inconsistent rights is made, it cannot be retracted, thereby precluding the appellant from seeking mesne profits from the first defendant.