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TMI Blog1987 (12) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... facts giving rise to this appeal are as follows:- The respondent mortgaged the shop belonging to him to the defendant Nos. 1 to 11 on 9th May, 1950 by a registered mortgage deed. The possession of the premises was given to the mortgagees with right to collect rent from the tenant in payment A of interest on the mortgage amount. the mortgagees let out the premises to the defendant petitioner during the subsistence of mortgage. The respondent filed a suit for redemption of the mortgage and for vacant possession of the said shop against the mortgagees i.e. the defendant Nos. l to 11. The appellant who was the tenant of the shop was impleaded as party defendant No. 12 in the suit. The suit was decreed and the mortgage was redeemed. There was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal being Civil Appeal No. 13 of 197(). The said appeal was, however. allowed on a finding that the provisions of Section 13(1) of the Rajasthan Rent Control Act expressly ruled out the operation of the Transfer of Property Act and a person inducted as a tenant on the premises in a lawful manner could not he evicted except in accordance with the provisions of the Act. The decision in M/s Sachalmal Parasram v. Mst. Ratanbai Ors., A I R 1972 (SC) 637 and The All India Film Corp. Ltd. and Ors. v.Sri Raja Gyan Nath Ors., [1969] 3 S.C.C. 79 were held to be not applicable to the instant case. The interest of the appellant as a tenant subsists even after redemption of the mortgage until it is terminated in accordance with the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsistence of the mortgage leased out the land to a tenant. The mortgage was redeemed on payment of the mortgage debt. The mortgagor on being opposed by the tenant to have the possession of the mortgaged property, filed a suit for recovery of the possession of the land. lt ultimately came up before this Court and it was held as follows: The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as a mortgagee. Further, the mortgagee, who takes possession of the mortgaged property, must manage it as a person of ordinary prudence would manage it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by necessary implication. It was held that the settlement was not a bona fide one and a successor of the tenant did not acquire permanent right of tenancy in the demised lands under Bihar Tenancy Act. In Harihar Prasad Singh Anr. v. Must. Of Munshi Nath Prasad Ors., [1956] S.C.R. l where the mortgage was in respect of agricultural lands, this Court held:- The law is that a person cannot confer on another any right higher than what he himself possess, and therefore, a lease created by a usufructuary mortgagee would normally terminated on the redemption of the mortgage. Section 76(a) enacts an exception to this rule. If the lease is one which could have been made by the owner in the course of prudent management, it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a prudent owner of property would enter into it in the usual course of management. This being in the nature of an exception, it is for the person who claims the benefit thereof, to strictly establish it. It has been further observed that if there is a prohibition on mortgagee in letting of lands, the lease will not be binding on the mortgagors. But where there is no such prohibition the parties will be thrown back on their rights under the Transfer of Property Act, and lessees must establish that the lease is binding on the mortgagors under Section 76(a) of that Act. The act of the mortgagors leasing out the lands to tenants on the terms set out in the kabuliat was held to be neither prudent nor bona fide and as such the lease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that tenancy created by the mortgagee in possession does not survive the termination of the mortgagee's interest. After termination of mortgagee's interest the relationship of landlord and tenant does not survive and the claim of protection of Tenancy Act is not available to the tenant inducted by the mortgagee. The lease was also held to be not an act of prudent management. In the case of Om Parkash Garg v. Ganga Sahai Ors., JT 1987(1) S.C. 245. In which one of us was a party, this Court observed that the lease in question being held to be not an act of prudent management on the part of the mortgagee within the meaning of Section 76(a) of the transfer of Property Act, 1882, the alleged lease could not subsist after terminat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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