Holding

On redemption the mortgagor regains his own right and is not bound by any tenancy created by the mortgagee unless expressly permitted by the mortgage deed, so the tenancy does not survive redemption.

Summary

The appellants, Carona Shoe Co. Ltd. and another, were tenants of a shop that had been let out by a mortgagee who held the property under a mortgage from the owner. After the owner redeemed the mortgage, the mortgagee and a subsequent mortgagee sued to recover possession of the shop, and the trial court ordered eviction. The Kerala High Court affirmed the eviction, holding that a tenancy created by a mortgagee does not survive redemption. The Supreme Court held that on redemption the mortgagor regains his own title and is not bound by any tenancy created by the mortgagee unless the mortgage deed expressly permits it. Consequently, the tenancy did not survive redemption and the decree of eviction was upheld, though execution was stayed pending an undertaking from the appellants. The appeal was dismissed with costs.

Issues considered

Whether a tenancy created by a mortgagee in possession of an urban immovable property binds the mortgagor after redemption under Section 76(a) of the Transfer of Property Act, 1882.
Whether such tenancy survives redemption under the general rule of Section 111(c) of the Transfer of Property Act, 1882.
Whether the tenant inducted by the mortgagee is protected under Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965.
Whether the mortgage deed expressly authorises the mortgagee to create a tenancy that continues after redemption.

Legislation cited

Kerala Buildings (Lease and Rent Control) Act, 1965s. 11(1), s. 11(a), s. 2(3), s. 2(6)
Transfer of Property Act, 1882s. 111(c), s. 60, s. 76(a)

Subjects

mortgageredemptiontenancyleaseTransfer of Property ActKerala Buildings (Lease and Rent Control) Actevictionmortgageemortgagorprudent management

Judgment

CARONA SHOE CO. LTD. AND ANR.
v.
K.C. BHASKARAN NAIR

MARCH 9, 1989

'B [SABYASACHI MUKHARJI AND S. RANGANATHAN, JJ.]

Kerala Buildings (Lease and Rent Control) Act 1961: Sections
2(.3), 2(6) and ll(a)-Tenants inducted into possession by mortgagee-
Whether liable to eviction through a decree of Court passed in a suit for
redemption of mortgage. Section 76(a) of the Transfer of Property Act
)-'>.
1882-Whether attracted.
c
The ap11ellants are tenants. The premises in dispute is a shop
building bearing No. T.C. 887, M.G. Road, Pazhavangadi, Tri- i
vandrum, part of a Pucca three storeyed building owned by one M.P.
_PMllip. As per the settlement the shop in dispute devolved on one of his
D _sons, wMle the shop was in the posses.5ion of the tenant. During the tenancy
owner mortgaged the premises in dispute and the remaining portions to
the first defendant with a direction to receive the rent from the tenant.
The tenant was asked to attorn to the mortgagee. The first defendant in
course of management of the property gave the building on lease to the
appellants for a higher rent; the earlier tenant having vacated the same. )'
•
E The owner thereafter executed the second mortgage with a direction to
redeem the mortgage in favour of the first defendant 'and before the
subsequent mortgagee took steps to redeem the mortgage, the owner
~
assigned his equity of redemption to the respondent. ·
\ 1'I
F
The Respondent and the subsequent mortgagee together as
plaintiffs 1 & 2 filed a suit to redeem the mortgage of the first defendant
>:
impleading the appellants as parties and claimed recovery of the Khas k
possession of the building.,The appellants contended (i) that they are
tenants of the building inducted into possession by the mortgagee as a
mode of enjoyment; (ii) that the mortgage deed authorised the mort-
gagee to enjoy the building by letting it out and that they were not liable
•1 G to be evicted through a decree of Court in redemption Suit ,without an
order under the Kerala Building (Lease and Rent Control) Act 1965.

The trial Conrt decreed the suit and directed recovery of posses-
sion of the Shop bnilding. It took the view that the mortgagee could not
induct a tenant and give him any right to continue in possession even
H after the redemption of the mortgage.
;; - -

974
CAR'ONA SHOE CO. v. K.C.B. NAIR 975

On appeal, the first appellate Court held that the disputed build- A
ing was a shop building which was never in the enjoyment of the owner;
mode of enjoyment of the owner being by letting it out and when the
mortgagee enjoyed the property in that manner by letting it out, the
person put in possession as a tenant was entitled to continue in posses-
sion even after redemption, until evicted under the Rent Control Act. It
B
also found that the mortgage deed impliedly authorised the mortgagee
to let out the building. In that view of the matter, the trial Court's order
was set aside.

The Respondent thereupon filed a second appeal before the High
Court. The High Court took the view that it was not open to the mort-
gagee to induct a persi>n into possession which conferred any right on C
the tenant to continue in possession even after redemption. Accordingly
it allowed the appeal and a decree for eviction was passed. Hence this
appeal by the appellants tenant.

Dismissing the appeal, but directing that the decree for eviction D
should not be executed till the 31st October, 1989 if the appellants give
usual undertaking to deliver vacant possession on 3 lst October, 1989,
this Court,

HELD: That the mortgagor on redemption of mortgage gets back
his own right: he is not the successor-in-interest of the mortgagee.
Interest, if any, created by the mortgagee on the mortgagor's right, E
must disappear on ceasing of the interest of the mortgagee. [983C-DI

The limited estate created in favour of the mortgagee having dis-
appeared, all rights emanating from that limited estate disappear and
the superior right of the mortgagor comes not in place of the mortgagee
but as a result of an independent title, and as such the mortgagor F
cannot be bound by any act created or any relationship contracted
between the mortgagee and the tenant, unless it is permitted by the
mortgage-deed. [983G-H)

The mortgagor's right of redemption and the mortgagee's right of G
foreclosure or sale are co-extensive. [9840 I

Jadavji Purshottam v. Dhani Navnitbhai Amaratlal & Ors.,
[1988) 4 SCC 223 and Poma/ Kanji Govindji & Ors. v. Vraj-
lal Karsandas Purohit & Ors., [1988) 4 Judgment Today SC 307,
followed.
H
••

976 SUPREME COURT REPORTS [1989] 1 S.C.R.

Raj Brij Raj Krishna & Anr. v. S.K. Shaw & Bros., [1951) t
A 2 SCR 145; M/s. Raval & Co. v. K. G. Ram Chandran & Ors., [1974) 1
SCC 424; V. Dhanpal Chettiar v. Yesodai Ammal, [1979) 4 SCC 214;
Gian Devi Anand v. Jeevan Kumar & Ors., [1985) 2 SCC 683 and G.
Ponnial Thevar v. Nalleyam Perumal Pillai & Ors., [1977] l SCC 500
not applicable.
B
CIVIL APPELLA1E JURISDICTION: Civil Appeal No. 1065
of 1987.

From the Judgment and Order dated 21.10.1986 of the Kerala
High Court in S.A. No. 491of1980.
c G. Vishwanatha Iyer, S. Balakrishnan and M.K.D. Namboodri
for the Appellants.

T.S. Krishnamoorthy Iyer, A.K. Srivastava and S.C. Birla for
the Respondent.
D
The Judgment of the Court was delivered by

SABYASACHI MUKHARJI, J. This appeal by leave is from the
judgment .and order of the High Court of Kerala, dated 21st October,
1986. It arises in the following circumstances:
E
The building in question which is a shop building No. T.C. 887,
M.G. Road, Pazhavangadi, Trivandrum, is part of a pucca three
storeyed building belonging to one M.P. Philip and as per his set-
tlement the disputed shop-building and two other rooms devolved on
one of his sons M.M. Philip. While this disputed shop-building was in
F the possession of a tenant under the owner, the owner mortgaged the
disputed building and the remaining portions to the first defendant
with a direction to receive the rent from the tenant. The mortgagor
directed the tenant also to attorn to this mortgagee. The first
defendant subsequently in the course of his management of the mort-
gaged property, gave the building on lease to the appellants for a
G higher rent when the former tenant vacated the same. Subsequently,
the owner executed a subsequent mortgage with a direction to redeem
the mortgage in favour of the first defendant and before the subse-
quent mortgagee took steps to redeem the mortgage, the owner as-
signed his equity of redemption to the respondent. The respondent
and the subsequent mortgagee together as plaintiffs 1 and 2 filed a suit
H to redeem the mortgage of the first defendant impleading the appel-
CARONA SHOE CO. v. K.C.B. NAIR IMUKHARJI, J.] 977

-,: !ants as well as respondents and claimed recovery of the khas posses-
A
sion of the building. The appellants contended that they are tenants of
the building inducted into possession by the mortgagee as a mode of
en joymenUhat the mortgage deed authorised the mortgagee to en joy
the building by letting it out and they were not liable to be evicted
through a decree of court in a redemption suit without an order under
the Kerala Building (Lease & Rent Control) Act, 1965 (hereinafter B
'f
referred to as 'the Act'). The trial court decreed the suit and directed
recovery of possession of the shop-building on the ground that the

-< mortgagee could not induct a tenant and give him any right to continue
in possession even after the redemption of the mortgage. On appeal by
the appellants, the first appellate court held that the disputed building
was a shop-building .which was never in the enjoyment of the owner
and the mode of enjoyment of the owner of the property was by letting
c
)- it out and when the mortgagee en joyed the property in that manner,
by letting it out, the person put in possession as a tenant was entitled to
continue in possession even after redemption, until evicted under the
Rent Control Act. The first appellate court further found that the
mortgage deed impliedly authorised the mortgagee to let out the build- D
ing. In that view the decree for khas possession of the shop-building in
possession of the appellants was denied to the respondent.

The respondent filed a second appeal before the High Court,
"" raising the following three contentions:
E
(1) Whether under section 76(a) of the Transfer of Property
Act, 1882, a tenancy created by the mortgagee in possession of
an urban immovable property would be binding on the mort-
gagor after redemption of the mortgage, assuming that the
;,..:' tenancy was such as a prudent owner of property would have
~. granted in the usual course of management. F

(2) Whether a tenancy created in exercise of a general
power to grant a lease expressly or impliedly conferred on the
mortgagee would survive the redemption of the mortgage in view
of Sec. lll(c) of the Transfer of Prpperty Act, 1882; and
G
(3) Whether a tenant inducted on the property by a mort-
gagee with possession, would after redemption of the mortgage
be protected under the provisions of s. 11(1) of the Act.

The High Court was of the view that as the appellants had not
pleaded that _they were inducted into possession by the mortgagee as H
978 SUPREME COURT REPORTS [1989) 1 S.C.R.

A prudent act of management, it was not open to the appellants to con- 'r
tend that they could continue in possession even after redemption.
Further, the High Court was of the view that it was not open to the
mortgagee to induct a person into possession which conferred any
right on the tenant to continue in possession even after redemption.

B The High Court categorically came to the conclusion that protec-
tion under s. 76(a) of the Transfer of Property Act, 1882 was never
claimed in the written statement. On the other hand, it was contended
by the appellants that this was a pure question of law unconnected with
the question of fact and, therefore, no pleadings were necessary and
even without pleading such contention could be raised and considered
by the Court at the time of argument. Whether a particular lease is
c bona fide or prudent act of management, is primarily a question of
fact, though whether on account of the bona fide or prudent act of the
mortgagor his lessee was entitled to continue even after the mortgage
was determined, is a question of law. The High Court was of the view
that the decision on the question of law is dependent on the question of
D fact whether the lease was bona fide or a prudent act of a person of
ordinary prudence, who would manage it as if it were his own. On that
question of fact, there should be definite pleading so that the plaintiff
must have an opportunity of meeting the claim and adduce evidence in
rebuttal. The High Court therefore could not sustain the right of the
tenant under s. 76(a) of the Transfer of Property Act, as a matter of
E prudent management. There was no issue in this respect and the judg-
ment of the trial court did not show, according to the High Court, that
such a contention was raised. The only contention that was raised was
that the lease was with the knowledge or consent of the mortgagor.
The High Court further came to the conclusion that there was no
evidence in support of that contention. The finding of the District
F Judge that the mortgagee had implied authority of the mortgagor to let
out, was not only lacking in pleadings or issue, but it was also not
warranted by the provision of the mortgage deed or the evidence.

The High Court relied on several decisions and came to the
conclusion that the provision .of Sec. 76( a) of the Transfer of Property
G Act, 1882, which was an exception to the general rule embodied in
Sec. 111(c) applies in appropriate cases ordinarily only to the manage-
ment of agricultural lands and had seldom been extended to urban '<(
property r.o as to tie up in the hands of lessee or to confer on him rights
under special statutes.

H The High Court further came to the conclusion that the general
CARONA SHOE CO. v. K.C.B. NAIR (MUKHARJI, J.] 979

proposition of law is that no man can convey a better right than he
A
himself has. ·Therefore, a mortgagee in possession cannot create
tenancy with a right to continue in possession beyond the period of
redemption. Normally, lease by the mortgagee is determined when the
~- mortgage is redeemed since there is no privity between the mortgagor
and the Jessee. The question of prudent management under Sec. 76(a)
of the Transfer of Property Act, 1882 by granting of lease or otherwise B
normally arises only in rural agricultural lands and not in urban
immovable property. The High Court further came to the conclusion
that a mere authorisation to the mortgagee to lease the property itself
does not amount to any intention to allow expressly the creation of a
tenancy beyond the term of the mortgage. Only where the words of the
mortgage deed clearly and expressly allowed creation of tenancy
beyond the term of the mortgage that the lease would be binding on c
the mortgagor. In that view of the matter, the High Court held that the
learned District Judge was wrong in holding that the defendants Nos. 2
& 3 were not liable to be evicted in this suit and that they could be
evicted only through an order of a competent Rent Controller. In the
premises, the second appeal was allowed and a decree for eviction was D
passed.

Aggrieved thereby, the appellants have come up before this
Court. The question is-was the High Court right.

The first contention of Sri Vishwanatha Iyer, learned counsel for E
the appellants, was that in view of the terms of the mortgage in the
instant case, the appellants were entitled to be in possession after
redemption of mortgage as against the mortgagor. He drew our atten-
tion to the mortgage deed dated 4th July, 1960. The mortgagor in that
mortgage deed stated that he was the absolute owner of the property
and therefore he was mortgaging the property. Thereafter, the deed F
proceeded to state as follows:

"This property is hereby secured to you on otti for a term
of 2 years for Rs. 7 ,000 which I have received as recited
hereunder. Therefore, you may possess and enjoy the
property by collecting the rent from the tenants and after G
the expiry of two years I shall pay you the sum of Rs. 7,000
and get a release of the otti an&the expenses for the release
should be shared by us."

The mortgagee was to enjoy the property by collecting the rent
from the tenants. This mortgage was renewed for the second time on H
980 SUPREME COURT REPORTS (1989] 1 S.C.R.

A 17th August, 1977. The second mortgage deed recited that the shop in .V-
Item I which was in possession of Carona Shoe Corµpany, was given
for enjoyment. Therefore, the fact that the tenant was there, is
accepted.

It was contended that as no amount was being paid as interest,
the mortgagee was entitled to the benefit, that is to say, the rent from
the premises in question. It was contended that the High Court was
wrong in holdinz that it was not an act of prudent management. Sri
Iyer referred to the document dated 3rd June, 1977 which recited as
follows:

"But the portion where the Ringal shop was situate alone
c was given possession to you and the remaining portion
forming upstairs to the shop previously Ringal Shop, now
Caromi Shoe Mart, and the shed portion behind it was let
out to Chellamma Pillai by the mortgagor and she is
occupying it while so the mortgagor has executed a sub-
D sequent mortgage and an agreement for sale to Chellamma
Pillai anCf she is entitled to redeem you and recover posses-
sion of the building."

These contentions, in our opinion, are concluded by the decision /.
of this Court in Poma/, Kanji Gvoindji & Ors. v. Vrajla/ Karsandas
E Purohit & Ors., (1988] 4 Jmt. Today SC 307, wherein it was held that
except in cases where the leases specifically and catogorically make
exceptions in favour of the tenants that they would continue to be in
possession even after the expiry·or termination of the mortgage, and
those leases are acts of prudent management, the tenants inducted by \:
the mortgage would be entitled. to the protection under the Rent Act
p after the redemption of mortgage.and in no other cases. +
Sri Iyer, in our opinion, is wrong in contending that in the instant
case the mortgage deed specifically empowered the mortgagor to
induct tenant who would continue to be in possession even after the
redemption or end of the mortgage. It is true that the mortgage deed
G recited that the tenants were there. It is also true that the mortgage
deed also enjoined that the method of realisation of the rent as the
method of having the usufruct of the mortgage by the mortgagee. But ~
it must be understood that so long as the mortgage subsisted, there was
relationship of tenant and landlord. It could not be so after the mort-
gage was redeemed. The.re is nothing in the mortgage-deed in the
H instant case which warranted the conclusion that the mortgagee could
'
.;,d
•
CARONA SHOE CO. v. K.C.B. NAIR [MUKHARJI, J.] 981
" ..,
,."' induct tenants who would continue beyond the term of the existence of
A
the mortgage or who would be given rights even after the expiry of the
mortgage. Sri Iyer then submitted that this Court in the aforesaid
decision had referred to another decision of this Court, namely,
Jadavji Purshottam v. Dhami Navnitbhai Amaratlal & Ors., [1988] 4
sec 223 where it was held that if the lease granted to the tenant by the
mortgagee had the approval or concurrence of the mortgagor, the B
+
same would entitle the tenant to claim tenancy rights even as against
the mortgagor after he had redeemed the mortgage, then in such a

~~
case, such tenants would continue to be in possession. Sri Iyer drew
our attention to the observations of this Court in the aforesaid decision
at para 13 of page 236 of the report. With reference to the term of the
mortgage in the instant case and the communications between the
parties, Sri Iyer tried to contend that the lease granted in favour of the c
~- appellants by the mortgagee had the approval or concurrence of the
mortgagor. We are, however, unable to accept or find in the cor-
respondence any such approval or concurrence. We have referred to
the mortgage deed and the sale deed as mentioned hereinbefore. Sri
Iyer drew our attention to a letter dated 7th October, 1977 addressed D
to the Rent Controller with a copy to the General Manager, Carona
Shoe Co. Ltd. Therein, the respondent had negotiated or made an
offer and expressed preference for the appellant-company. The letter
contained the following statements:
"" "Under the circumstances, I have now finally decided ·to E
"' settle all the issues and start the construction of the rear
... portion as early as possible as I have two more offers (other
. than yours) for renting out the entire ground floor (about
1,500 sq. ft.) which includes the space now occupied by you
->-< and a portion of the first floor.
+ I am writing this letter to you because my first preference is
F

for your company. The main reason is that you are con-
ducting the business in the same shop for some years.
II\ Second thing is that I have already agreed to you at the
discussion even though there was no written consent. In the
lighl of the 'above, I give below my terms and conditions for G
r-enting out the shop with additional space annexed, if you
y are interested to continue the business in my building. Of
course, the expenses (portion) for the same will have to be
borne by you. But I will provide you with a very good show
room considering your requirements. Necessary bathroom,
lavatory, office cabin etc. will also be provided in consulta- H

'1
1

1
982 SUPREME COURT REPORTS [ 1989] 1 S.C.R. 'J•
~
tion with your representative. I had a discussion with Mr ..,- '
A
L.W. Baaker, A.R.I.B.A. (The British Architect who is
doing so many artistic modem buildings and show room
etc. throughout India including the Chitralekha Film
Studio) and the Art. Director and Interior Decorator of
our Studio regarding the subject."
B
Thereafter, certain terms and conditions of the proposed lease
were suggested. Ultimately, however, no such lease was executed.
This communication strictly, in our opinion, negates the submission
that there was any concurrence or approval of the mortgagor of the
continuance of the appellant's as tenants after the expiry or redemp-
tion of the mortgage. ·
c
It was then submitted by Sri Iyer that in view of the provisions of "'1
the Act, it was not possible for the respondents to execute the decree.
After an exhaustive discussion of the relevant authorities, it has been
held hy this Court in Poma/ Kanji Govindji's case (supra) that in k
D respect of the urban immovable properties, the tenants do not get any
protection after the redemption of mortgage. Sri Iyer, however drew
our attention to Sec. 11 of the Act, to contend that notwithstanding
anything contained in any other law or contract, a tenant shall not be
evicted, whether in execution of a decree or otherwise, except in
accordance with the provisions of the Act. He drew our attention to
..
E the definition of 'tenant' under sec. 2(6) of the Act which defines a /j
tenant as a person by whom or on whose account rent is payable for a
building and includes the heir or heirs of a deceased tenant and a
,___
person continuing in possession after the termination of the tenancy in I
his favour. Similarly, landlord is defined under S. 2(3) of the Act as \;
follows:
F t
"(3) "landlord" includes the person who is receiving or is
entitled to receive the rent of a building, whether on his
own account or on behalf of another or on behalf of himself
and other or as an ~gent, trustee, executor, administrator,
receiver or gurdian or who would so receive the rent or be
G entitled to receive the rent, if the building were let to a
tenant."

But in view of the said definitions, we are of the opinion that
between the appellants and the respondent, there was never any land-
lord or tenant relationship. The appellants were never the tenants of
H the respondent. Sri Iyer drew our attention to the observations of this
CARONA SHOE CO. v. K.C.B. NAIR [MUKHARJI, J.i 983

Court in Raj Brij Krishna & Anr. v. S.K. Shaw & Bros., [1951] 2 SCR
A
145, where it was held that the non obstante clause would be applic-
able. Our attention was drawn to the observations of Fazal Ali, J. at
page 150 of the report. There, the Court observed that Section 11 of
the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947 was a
self-contained section, and it was wholly unnecessary to go outside the
Act for determining whether a tenant was liable to be evicted or not, B
and under what conditions he could be evicted. But in the instant case,
the appellants were not the tenants. The respondent, the original
mortgagor, would never after the redemption of the mortgage have
treated the appellants to be tenants. There was no relationship ever
between the appellants and the respondent. The mortgagor had a
separate and distinct interest which was wiped out on the redemption
of the mortgage or expiry of the period of mortgage. The mortgagor on c
redemption of mortgage gets back his own right, he is not the
successor-in-interest of the mortgagee. Interest, if any, created by the
mortgagee on the mortgagor's right, must disappear on ceasing of
interest of the mortgagee. In that view of the matter, in our opinion,
thus the said observations would not be of any relevance to the present D
case. Similarly, reliance was placed on the observations of this Court
by Sri Iyer in Mis Raval & Co. v. K.G. Ramachandran & Ors., [1974] 1
sec 424. The observations that the definitions of 'landlord' and 'ten-
ant' might apply even if the contractual tenancy has come to an end.
But that is not the situation here in the instant case. In the said case,
Bhagwati, J. as the Chief Justice then was, in his judgment at page 439 E
of the report observed that sub-section (1) of section 4 of the Act in
question i.e., Tamil Nadu Buildings (Lease & Rent Control) Act, 1960
I contemplated that an application for fixation of fair rent of a building
might be made by the tenant or the landlord. The definition of 'ten-
ant', it was observed, included contractual tenant as well as tenant
remaining in possession of the building after de.termination of the F
contractual tenancy, i.e. statutory tenant, and both contractual tenant
and statutory tenant could, therefore, apply. It was, therefore, submit-
ted in this case that on the analogy of the contractual tenant, the
appellants were entitled to the protection of the Act. We are unable to
agree. It is not a question of a contractual tenancy coming to an end.
The limited estate created in favour of the mortgagee having disap- G
peared, all rights emanating from that limited estate disappear and the
superior right of the mortgagor comes not in place of the mortgagee
but. as a result of an independent title, and as such the mortgagor
cannot be bound by any act created or any relationship contracted
between the mortgagee and the tenant, unless it is permitted by the
mortgage-deed. Reliance was also placed on certain observations of H
t'
'
984 SUPREME COURT REPORTS [1989] 1 S.C.R.

this Court in V. Dhanpal Chettiar v. Yesodai Ammal, [1979] 4 SCC
A 214. Therein, it was held that under the State Rent Acts, the concept
of contractual tenancy has lost much of its significance and force.
Therefore, giving of the notice was a mere surplusage and unlike the
law under the Transfer of Property Act, 1882, it does not entitle the
landlord to evict the tenant. In our opinion, the observations of the
B said decision cannot have any assistance or significance for the purpose
of the issues involved in the present controversy.

Our attention was also drawn to the observations of this Court in
Poma! Kanji Govindji's case (supra) at para 42 of page 326 and it was
contended that in this case impliedly the mortgage-deed specifically
and categorically made an exception in favour of the tenants that they
C would continue in possession even after the termination or redemption
of the mortgage and that these leases were acts of prudent manage-
ment. In this connection, reference may be made to Section 60 of the
Transfer of Property Act. It is this which gives the mortgagor right to
redeem after the date fixed for payment. The mortgagor's right of
o redemption and the mortgagee's right of foreclosure or sale are
co-extensive. Similarly, Section 76(a) of the Transfer of Property Act
which determines the liabilities of the mortgagee and imposes the
obligation to manage the property as a person of ordinary prudence. In
the instant case, it has been held by the High Court that the induction
of the appellants as tenant was not an act of prudent management.
E
Our attention was also drawn by Sri Iyer to the observation of
this Court in Gian Devi Anand v. Jeevan Kumar & Ors., [1985] 2 SCC
683 in support of his submission that in the emerging jurisprudence of
tenancy legislation the distinction between statutory tenant and con-
I
tractual tenant has disappeared. The said view, in our opinion, would
F be of no avail as the respondent is not the successor-in-interest and
does not come in place of the mortgagee but by virtue of its indepen-
dent title.

Reliance was also placed on the observations of this Court in G.
Ponniah Thevar v. Nalleyam Perumal Pillai & Ors., [1977] 1SCC500.
G That decision, in our opinion, has no application. The person induct-
ing the tenant-appellant was a co-widow who had a life interest in the
lands. It was observed that the terms of the statutory protection
applied clearly to all tenancies governed by the Madras Cultivating
Tenants Protection Act irrespective of the nature of rights of the
person who leased the land so long as the lessor was entitled to create a
H tenancy. In our opinion, the said observations would not be applic-
CARONA SHOE CO. v. K.C.B. NAIR (MUKHARJI, J.) 985

able. The said decision deals with the right of the co-widow in the land. A
Reference may be made to the facts of that case at page 504, para 10.
In our opinion, in view of the said facts, the decision would not apply
to the facts of the instant case. On the other hand, in view of the facts
and ratio of the principle of the decisions in Jadavji Purshottam,
(supra) and Pomalji Govindji, (supra) we are of the opinion that the
B
contentions of Sri Iyer cannot be sustained. The non obstante clause in
Section 11(a) of the Act is applicable only to a decree for eviction
obtained by a lanlord against a tenant. The appellants were never the
tenants of the respondent.

In the aforesaid view of the matter, we are unable to accept the
submissions urged in this case and, therefore, the appeal must fail. But C
in view of the fact that the appellants have been canying on the busi~
ness for some time in the premises in question in order to enable them
to adjust their business, we direct that the order for eviction of the
appellants should not be executed upon 31st October, 1989 if the
appellants give an undertaking within a period of four weeks from this
date to give vacant possession in a peaceful manner on 31st October, O
1989; and also containing the usual terms of undertaking. In default of
. such undertaking being given within the time aforesaid, the decree· will
be forthwith executed.

The appeal is accordingly dismissed with costs.
E
Y.L. Appeal dismissed.