ORDER
Huluvadi G. Ramesh, J.
1. This petition is filed under Section 46(1) of the Karnataka Rent Act to set aside the order dated 18.2.2006 passed in HRC.NO. 232/2002 by the II Additional Small Causes Judge Bangalore and to allow the eviction petition filed by the respondent.
2. Heard the learned Counsel for the petitioner and the learned Counsel representing the respondent.
3. The brief facts of the case before entering into the discussion based on the arguments are as under:
The respondent-tenant herein filed petition against the petitioner-landlord under Section 27(2)(r) and 31(1)(a) of the Karnataka Rent Act 1999 for eviction from the petition schedule premises that is, ground floor portion of the premises at out house No. 99, Surveyor Street, Basavanagudi Bangalore. According to the landlord property bearing No. 99 and 100 of the Surveyors Street consists of an outhouse in the ground floor at No. 99 and first floor at No. 100. They are in dangerous and dilapidated condition and the schedule premises has to be demolished and reconstructed. As per the contention of the landlord, respondent is a tenant of the schedule premises since 1983 and had paid advance of Rs. 10,000/-. A lease agreement dated 25.4.1997 was executed for a period of 11 months for a monthly rental of Rs. 1300/- and after expiry of the said lease no further lease agreement was executed and the tenant continued as a monthly tenant paying rent of Rs. 1500/- per month. Tenancy was monthly tenancy commencing from 1st of every calendar month. According to the landlord originally property belonged to her husband D.V. Vijaykumar who died during 1993 leaving behind her and 3 daughters and a son. Her father-in-law was taking care of the property and regarding negotiations. However tenant was paying rent to the landlord. The suit premises is more than 50 years old and is in a dangerous and dilapidated condition. It requires demolition and reconstruction. After reconstruction landlord wants to accommodate her children who are grown up. As such she requires the suit premises for use and occupation of herself and her family members. Landlord further states that she is a widow and requires immediate possession of the schedule premises to carryout the intending purpose. Notice is said to have been caused on 18.2.2002 on the tenant terminating the tenancy. However untenable reply refusing to vacate the premises was sent by the tenant. Landlord further states that no hardship would be caused if the tenant is evicted. Hence petition was filed before the trial Court.
4. According to the tenant who is the petitioner herein he has been put in possession of premises by way of usufructuary mortgage dated 21.10.1982 and since then he is in possession of the suit premises as a mortgagee and denied tenancy under jural relationship of landlord and tenant. He also denied any lease agreement dated 25,4.1997 and also rate of rent at Rs. 1300/- per month. Further he denies he is a tenant for a monthly rent of Rs. 1500/-. However he admits that advance amount of Rs. 10,000/- was paid and he is paying rent of Rs. 1500/- per month for the alteration made in respect of the portions of the schedule property. Accordingly he contended that he is entitled to protect his possession both as a mortgagee as well as a lessee. According to the petitioner-tenant herein petition premises is not in a dilapidated condition and has been attending to the repairs regularly. He also denied any inters arrangement between the landlord and her family members. According to the tenant he is residing in the premises along with his wife, mother and children and if he is evicted from the property he would be put to hardship.
5. The trial Court after hearing both the parties raised five points for consideration and held that petitioner before the trial Court is landlord and petitioner herein who was arrayed as respondent therein as a tenant. Based on the evidence led in the trial Court has come to the conclusion that landlord is entitled for an order of eviction; she requires immediate possession of the suit property for occupation of her family members and thereby the trial Court by its order dated 18.2.2006 directed the petitioner herein to evict the suit premises. However three months time was granted to vacate and hand over vacant possession of the suit premises and directed to hand over the suit property on or before 18.5.2006. Aggrieved by the said order respondent-tenant before the trial Court has preferred this revision petition.
6. The learned Counsel for the petitioner has taken me through the recital in Ex.R5, which is said to be the registered deed. According to him, it is a mortgage deed and it is his contention that once a mortgage is always a mortgage and the averments made in the deed clearly depicts that it is a clear case of usufructuary mortgage and not a lease as there is a mere compliance of Section 58 of the Transfer of Property Act and according to him, it is only as per Section 60 of the Transfer of Property Act the mortgage would be redeemed only by the act of parties or by the operation of law. According to him, there is no such act of redeeming the mortgage by the parties and much less no such steps have been taken by the respondent herein to vacate the possession of the premise by filing the suit for redemption of mortgage. Accordingly, his contention is that the entire order of the trial Court holding that petitioner is a tenant and ordering to evict him is illegal and without any basis.
7. The learned Counsel appearing for the respondent herein has vehemently contended that despite mentioning it as a mortgage deed the very contents of the deed clearly makes out that it is only a lease for a year and it was registered and immediately after expiry of one year it was for the petitioner herein to vacate and hand over the vacant possession of the premises and much less the petition premises was not the subject matter of the mortgage and nor the parties intended the agreement to be in the form of mortgage and it is more in the form of a yearly lease. The learned Counsel has also taken me through Exs.P1 and P2 and submitted that subsequently, the agreements have been entered into between the parties, wherein the petitioner herein has also agreed and went on paying Rs. 1,300/- as a rental for 11 months and thereafter, although there is no such continuation by another deed of lease, rent was enhanced from Rs. 1,300/- to Rs. 1,500/- and by the act of parties it has been treated more as a least throughout Under such circumstances, the question of petitioner herein taking the contention that it was a usufructuary mortgage does not hold water. Accordingly, submitted that petitioner having enjoyed the premises for more than 25 years is causing hardship to the respondent in not vacating the premises and the trial Court having rightly interpreted the recitals contained in Ex.R5 and other documents has rightly come to the conclusion that there is a jural relationship of landlord and tenant and the agreement is more in the form of a lease and not a mortgage.
8. In view of the submissions made, the following points arise for determination:
i) Whether initially the premises were let out on mortgage or on lease?
ii) Whether the petitioner has to vacate the petition premises?
iii) Whether the trial Court has committed any error in passing the order of eviction against the petitioner herein?
Section 58(d) and 60 of the Transfer of Property Act, 1882 reads as under:
'58. 'Mortgage', 'mortgagor', 'mortgagee', 'mortgage-money' and 'mortgage-deed' defined-(a)... ... (b)... ... (c)... ...
(d) Usufructuary mortgage-Where the mortgagor delivers possession (or expressly or by implication binds himself to deliver possession) of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property (or any part of such rents and profits and to appropriate the same) in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest (or) partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.
60. Right of mortgagor to redeem-At any time after the principal money has become (due), the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver (to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee), (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
Provided that the right conferred by this section has not been extinguished by act of the parties or by (decree) of a Court.
The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.
Redemption of portion of mortgaged property-Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except (only) where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.
Further it may also be relevant to note Section 105 of the Transfer of Property Act, which reads as under:
105. Lease defined-A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service of any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined-The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.
9. In paragraph 24 of the order of the trial Court the reading of Ex.R5, which is said to be a mortgage deed according to the petitioner herein is extracted, which reads as under:
It crystallizes that the mortgage amount was Rs. 9000/- and there is a recital to the effect that
10. The trial Court having noted the above recitals of Ex.R5 was of the view that the usufructuary mortgage was created only for one year with the terms and conditions and after the completion of one year without expecting the return of said amount the petitioner herein had to vacate and hand over the schedule premises to the deceased Vijay kumar who is the husband of the respondent herein with the original status of the schedule premises and accordingly, has observed that question of cancellation of such mortgage deed by way of registered document does not arise. As such, even though the word mortgage has been used in Ex.R5 the intention of the parties is shown to be in the form of a lease more than a mortgage.
11. Further, the trial Court also having noted Ex.P1which is said to have been executed by the petitioner herein in favour of the husband of the respondent on 1.11.83, has observed that petitioner herein has not disputed the execution of such document and as per the recitals contained in Ex.P1 it is a lease deed for a period of 11 months wherein the petitioner herein has admitted that he had to vacate the schedule premises on 19.10.83 and to give the vacant possession to the landlord and as he could not get an alternative accommodation, he requested the landlord to oblige to stay for a further period of three months from 1.11.1983 and also said to have paid an advance of Rs. 10,000/- as security deposit. This also clearly depicts that it is more in the form of a lease.
Section 107 of the Transfer of Property Act reads as under:
107-Leases how made-A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
(All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
(Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:)
Provided that the State Government may (***) from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.)
12. The above condition provided under Section 107 of the transfer of Property Act makes it very much clear that a yearly lease is to be registered. As per Ex.R5, originally, Rs. 9,000/- was taken as yearly rent as an advance for having let out the premises for an year, more so, it is shown to be a registered instrument as per Section 107 of Transfer of Property Act. Further execution of Exs.P1 and P2 by the petitioner herein in favour of the husband of the respondent and also farther in favour of the respondent herself clearly depicts the fact of extension of time. Even assuming for the sake of argument that Ex.R5 is a mortgage, as per Section 60 of the Transfer of Property Act by the act of the parties i.e., by way of further agreement entered into in respect of petition premises the original mortgage is shown to have been redeemed though the said agreements are not registered. As a matter of interpretation it is not the Section 58 and Section 60 of the Transfer of Property Act that applies to the case on hand rather, it is the recital in Ex.R5 and Exs.P1 and P2 and also the intention of the parties which makes it clear that Ex.R5 was originally in the form of a lease from year to year and also the premium was paid by the petitioner herein in advance for an year. Under such circumstances, the argument of the Counsel for the petitioner/tenant does not hold any water to contend that this Ex.R5 is a usufructuary mortgage. The trial Court having proceeded meticulously on the documents available on record and having gathered the intention of the parties, has rightly come to the conclusion that there was a subsequent act of the parties and also there is a relation between parties as tenant and landlord and further also having appreciated the requirement of the respondent herein has rightly ordered for eviction of the petition premises. In view of the above, I am of the view that their exists a relationship of landlord and tenant between the petitioner and the respondent herein and the recitals of Ex.R5 combined with the subsequent documents Ex.P1 and P2 and also admission of the petitioner herein itself makes it clear that it is a lease from year to year and an amount of Rs. 9,000/-mentioned therein was not a mortgage amount and it was more a premium for a lease paid by the tenant in advance to the landlord. I do not find any illegality or error committed by the trial Court in passing the impugned order.
13. Accordingly, petition is dismissed. However, three months time has been granted to the petitioner to vacate and hand over the petition premises to the respondent. Parties to bear their own costs.
The learned Counsel for the respondent has submitted that there is an arrears of rent of Rs. 65,000/-. However, it is for the respondent to proceed in accordance with law for the recovery of the rent.