RSA No.1893 of 1984 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1893 of 1984 Date of Decision: 21.08.2009 Tarsem Chand and others ...Appellants VERSUS Smt. Ved Wati and another ...Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI Present: Mr. M. L. Sarin, Sr. Advocate with Mr. Kabir Sarin, Advocate for the appellants. Mr. B. R. Gupta, Advocate for the respondents. *** AJAY TEWARI J. (ORAL) This appeal has been filed against concurrent judgments and decrees of the Courts below whereby it has been held that the appellants/plaintiffs – mortgagee would get only symbolic possession of the property and, in these terms a preliminary decree of redemption had been passed. The property in dispute was owned by Thakar Das deceased who mortgaged the same with respondent/defendant No.1 for Rs.14,000/- vide registered mortgage deed dated 17.12.1973. After getting the possession, the mortgagee leased out the same to respondent/defendant No.2 RSA No.1893 of 1984 -2- for a period of six months vide lease deed dated 15.4.1974. Thereafter the instant suit for possession by way of redemption of the property mortgaged was filed against the defendant-respondents. However, as noticed above, preliminary decree of redemption was passed and it was further held that only symbolic possession would be handed over to the appellants and that respondent No.2 would continue in possession as a tenant. The following questions of law have been proposed by the learned counsel:- “1. Whether the document Mark 'A1' which required registration could be seen for any of its terms? 2. Whether the Courts below were wrong in holding that the plaintiff-appellant is not entitled to physical possession of the building in question? 3. Whether an alleged tenant, inducted by the mortgagee, can continue in possession even after redemption of the mortgage? 4. Whether the judgments and decree of the Courts below are perverse and liable to be set aside?” With regard to questions No.1 and 3 (which are the main questions of law), there is a line of unbroken authority which shows that normally no tenancy created by a mortgagee can outlive the term of mortgage. However, learned counsel for the respondents has relied upon Clause 10 of the lease deed created in his favour to argue that it was specifically mentioned in the lease deed that even after redemption the mortgagor could not evict him for a period of 12 years and then too only on RSA No.1893 of 1984 -3- the ground of personal necessity. In response to this, learned counsel for the appellants has argued that the lease deed having been signed by both the lessor and the lessee, the same was compulsorily registrable and in absence thereof none of its clauses can be looked into. Learned lower Appellate Court held that this document did not require to be registered by placing reliance on Trivenibai and another v. Smt. Lilabai, reported as AIR 1959 S.C. 620. This judgment deals with the difference between present and future demise. In the present case, since the lease document was signed by both the parties and it created the tenancy rights in question it was compulsorily registrable and was a case of present demise. The said lease deed not having been registered, it cannot be read for anything except collateral purpose. Learned counsel for the respondents has however argued that by the preliminary decree passed by the trial court as far as back on 24.09.1981 the appellants were granted six months time to deposit the mortgage money, the same was neither deposited nor any averment made in the course of trial either before the learned lower Appellate Court or this Court that either the appellants were ready to deposit the amount or prayed for any extension. The appellants have challenged the judgments and decrees of the Courts below wherein it was held that even on redemption they would not be able to get the physical possession of the property. Thus, it cannot be said that by non deposit the equity of redemption has been completely eroded. Needless to say, now that this fact has been clarified, the appellants would have to deposit the amount within six months as prescribed by the trial court and then pray for a final decree of possession RSA No.1893 of 1984 -4- by redemption. In the circumstances, this appeal is allowed. The judgments and the decrees of the Courts below are set aside to the extent that they hold that the respondent No.2 would not be liable for eviction on redemption. ( AJAY TEWARI ) August 21, 2009 JUDGE ashish