( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION USJ SECOND APPEAL NO.79 OF 2009 SECOND APPEAL NO.79 OF 2009 SECOND APPEAL NO.79 OF 2009 Shivaji Bhimrao Shinde & Ors. ..Appellants V/s. Sampatrao Bapusaheb Shinde & Ors. ..Respondents ...... Mr.N.V.Walawalkar, Senior Counsel i/by G.H. Keluskar for the appellants Mr. Bhushan A. Walimbe and Smt.Preeti B. Walimbe for respondent No.1 Mr. Ajit J. Kenjale for respondent No.2 ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 28th April, 2009 DATED : 28th April, 2009 DATED : 28th April, 2009 P.C.: P.C.: P.C.: 1. The respondent No.1 executed a mortgage deed in favour of respondent No.2 dated 8th February, 1985 for a sum of Rs.20,000/- being mortgaged by conditional sale. The respondent No.1 filed a suit for redemption of the said mortgage being Regular Civil Suit No.22 of 1998 in the Court of Civil Judge, Senior Division, Shirala, Dist. Sangli (hereinafter referred to as the ’learned trial Judge’). The respondent No.1 had impleaded respondent No.2 the mortgagee as a party defendant and one Mr.Bhimrao Shinde as defendant No.2. because during the subsistence of mortgage, respondent No.2 had inducted Bhimrao as a tenant in regard to the property which was the subject matter of the mortgage deed. During ( 2 ) the pendency of the said suit, Bhimrao expired and, therefore, his heirs were brought on record who are presently the appellants. The learned trial Judge after considering the entire matter decreed the suit by judgment and decree dated 17th December, 2004 and directed respondent No.1 to pay Rs.20,000/- and that certain other orders were passed in regard to the property which was the subject matter of the mortgage deed and in substance heirs of original defendant Bhimrao were ordered to handover the possession to respondent No.1. This judgment and decree dated 17th December, 2004 came to be challenged in the District Court by present appellants by filing Regular Civil Appeal No.11 of 2005. The learned District Judge, Islampur by judgment and decree dated 29th November, 2008 dismissed the appeal. Against this judgment and decree dated 29th November, 2008 passed by District Judge, Islampur (hereinafter referred to as the ’learned District Judge’) this second appeal is filed by Shri Shivaji Bhimrao Shinde and others being the heirs of original defendant No.2 Bhimrao. 2. Before this Court, learned senior Counsel Mr.Walawalkar submitted that as mortgagee i.e. respondent No.2 had inducted Bhimrao as a tenant said Bhimrao was entitled to the protection of Bombay Tenancy and Agricultural Lands Act (hereinafter ( 3 ) referred to as the "said Act") even though the term of mortgage came to an end and that the impugned decree directing Bhimrao to handover to the respondent No.1 is contrary to the provisions of law. The learned Senior Counsel Mr.Walawalkar submitted that the interpretation given by the learned District Judge to the term lawfully inducted is incorrect keeping in view the provisions of law namely the said Act as well as the Transfer of Property Act and, therefore, the substantial question of law is being raised by this appeal as regards creation of a mortgage by respondent No.2 in favour of Bhimrao and validity thereof. 3. The learned Senior Counsel Mr.Walawalkar had relied upon the judgment in the case of Dahya Lala and Dahya Lala and Dahya Lala and Ors. V/s. Rasul Mohomed Abdul Rahim and Ors. and Ors. V/s. Rasul Mohomed Abdul Rahim and Ors. and Ors. V/s. Rasul Mohomed Abdul Rahim and Ors. and State of Maharashtra, Intervener, AIR 1964, SC 1320 State of Maharashtra, Intervener, AIR 1964, SC 1320 State of Maharashtra, Intervener, AIR 1964, SC 1320 as well as judgment of the Supreme Court in the case of Prabhu V/s. Ramdeo and Ors. AIR, 1966 SC 1721 Prabhu V/s. Ramdeo and Ors. AIR, 1966 SC 1721 Prabhu V/s. Ramdeo and Ors. AIR, 1966 SC 1721 By relying upon these two judgments, learned Senior Counsel Mr.Walawalkar wanted to contend that a person lawfully inducted by a mortgagee is entitled to the protection of the said Act and that after the end of the mortgage, the mortgagor will have to accept such a person inducted and then if at all the mortgagor is interested in taking possession of the property in question, he will have to adhere to the provisions of ( 4 ) the said Act. According to the learned Senior Counsel Mr.Walalwakar, induction of Bhimrao in the suit property by the respondent No.2 was on the basis of provisions of Section 76(a) of the Transfer of Property Act i.e. the said act of induction was by way of management of the property as a person of ordinary prudence. Learned Senior Counsel Mr.Walawalkar submitted that the view taken by learned trial Judge as well as the Appellate Judge is required to be corrected. 4. Learned advocate Mr.Walimbe opposed the submission by contending that the mortgage deed did not permit the mortgagee to create a tenancy in favour of an outsider and, therefore, creation of a tenancy by respondent No.2 in favour of Bhimrao cannot be termed as creation of a lawful tenancy and hence, the present appellants will not be able to get the benefit of the two judgments on which reliance is placed by the learned Senior Counsel Mr.Walawalkar. Learned advocate Mr.Walimbe had submitted by taking me through the mortgage deed pointed out that respondent No.2 represented to Bhimrao that is the full owner of the property. According to the learned advocate Mr.Walimbe, both the Courts below rightly arrived at final conclusion that creation of a tenancy in favour of the Bhimrao is contrary to the provisions of law ( 5 ) and, therefore, the view taken by both the Courts is required to be confirmed by this Court. 5. The learned Senior Counsel Mr.Walawalkar in reply to the submission advanced by learned advocate Mr.Walimbe submitted that there is no prohibition set out in the mortgage deed by which the mortgagee respondent No.2 was prohibited from creating tenancy in favour of an outsider. According to him, in the absence of such prohibition, the mortgagee respondent No.2 was entitled to create a tenancy and hence the submission of learned advocate Mr.Walimbe ought to be rejected. 6. I have considered the rival contentions. If a mortgagee in possession executes a tenancy in favour of a third person lawfully, then such a tenant is entitled to protection and there cannot be a dispute in regard to the preposition advanced by learned Senior Counsel Mr.Walawalkar, of course in view of the two judgments on which he has placed reliance. 7. In the present case, question as to whether Bhimrao can be treated as a person lawfully inducted in the suit land by the mortgagee is to be decided. For this purpose, one will have to refer to the terms ( 6 ) of the mortgage and if there is a clause for permitting the mortgagee to create a tenancy in favour of outsider such creation of tenancy in favour of outsider can be termed as lawful. In the absence of such a clause creation of a tenancy will not be lawful and such a creation of tenancy will not get sanction of the law and such a tenant will not get protection of the said Act. 8. I have perused the terms of the mortgage deed and there is no authority conferred upon the mortgagee to create a tenancy. One thing is also required to be noted that the mortgage was a mortgage by condition sale the terms will get governed by the provision of Section 58 Clause (c) of the Transfer of Property Act read with the actual terms of the mortgage deed. In the present deed of mortgage, there is no authority given to the mortgagee to create a tenancy in favour of an outsider during the subsistence of mortgage. If this is be so, the property was to be enjoyed by the mortgagee during the subsistence of mortgage. The argument advanced by learned Senior Counsel Mr.Walawalkar that if there is no prohibition in the mortgage deed to create a tenancy by the mortgagee should be termed as a permission or a implicit authority to create a mortgage cannot be accepted. In my view, if the mortgagee had an authority to create ( 7 ) the tenancy in favour of outsider, such authority will flow from the mortgage deed and not beyond that. I am inclined to observe that the mortgage created by respondent No.2 in favour of Bhimrao will have to be termed as a mortgage not in conformity with the provisions of law and that said Bhimrao cannot be treated as a person lawfully inducted in the suit property. 9. The argument advanced by learned Senior Counsel Mr.Walawalkar that the induction of respondent Bhimrao by the mortgagee respondent No.2 was in accordance with the provisions of Section 76(a) of the Transfer of Property Act i.e. in the course of ordinary management of the property, cannot be accepted because it was not contemplated by respondent No.1 mortgagor that the mortgagee would create a tenancy in favour of a outsider during the subsistence of mortgage. 10. In view of the aforesaid observations, I am inclined to observe that the creation of a mortgage by respondent No.2 mortgagee in favour of Bhimrao was not a lawful tenancy and as such the Bhimrao would not acquire rights as contemplated under the provisions of the said Act and as such after redemption of mortgage, the Bhimrao / appellants had no authority to remain in ( 8 ) possession of suit property. 11. With the aforesaid observations, I am inclined to observe that the point raised by learned Senior Counsel Mr.Walawalkar cannot be accepted. There is no merit in the Second Appeal and the second appeal is required to be dismissed. Hence, the following order. ORDER ORDER ORDER . Second appeal is dismissed with no order as to costs. . In view of the aforesaid, Civil Application No.270 of 2001 is dismissed with no order as to costs. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)