MATHURALAL versus KESHAR BAI AND ANOTHER

MATHURALAL versus KESHAR BAI AND ANOTHER

A mortgagee, after time for obtaining a final decree on a preliminary mortgage decree has lapsed, does not lose all rights in the property; specifically, if a rent note executed simultaneously with the mortgage deed confers independent tenancy rights and remedies (including eviction for nonpayment of rent), the mortgagee can sue for possession and arrears under the rent note—even though the mortgagee can no longer obtain a sale of the mortgaged property. The mortgagee's rights do not merge in the preliminary decree, nor are they extinguished by limitation solely by failure to obtain a final decree.

Parties
Appellant: Mathuralal; Respondents: Keshar Bai and Another
Jurisdiction
India
Judgment Date
20 February 1970
Procedural Posture
Civil Appeal / Appeal by Special Leave From the Judgment and Order Dated February 6, 1970 of the Madhya Pradesh High Court in Second Appeal No. 327 of 1963
Outcome
Appeal dismissed with costs.
Legal Topics
Mortgagee's Rights After Limitation for Final Decree, Landlord Tenant Relationship From Simultaneous Lease and Mortgage, Enforcement of Rent Note Executed With Mortgage, Effect of Limitation on Security and Redemption, Section 28 Limitation Act, 1908
Property Law Mortgage Law Mortgagee's Rights After Limitation for Final Decree Landlord Tenant Relationship From Simultaneous Lease and Mortgage Enforcement of Rent Note Executed With Mortgage Effect of Limitation on Security and Redemption Section 28 Limitation Act, 1908

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Parties

Mathuralal

Appellant

Keshar Bai and Another

Respondents

Procedural Posture

Civil Appeal / Appeal by Special Leave From the Judgment and Order Dated February 6, 1970 of the Madhya Pradesh High Court in Second Appeal No. 327 of 1963

Legal Issues

  1. 1 Whether the rent note executed simultaneously with a mortgage deed creates a landlord-tenant relationship independent of the mortgage.
  2. 2 Whether mortgagee's rights are extinguished or merged after expiry of limitation for a final decree under a preliminary mortgage decree.
  3. 3 Whether mortgagee can file a suit for possession and arrears of rent after the right to final decree on mortgage is time-barred.

Ratio Decidendi

A mortgagee, after time for obtaining a final decree on a preliminary mortgage decree has lapsed, does not lose all rights in the property; specifically, if a rent note executed simultaneously with the mortgage deed confers independent tenancy rights and remedies (including eviction for nonpayment of rent), the mortgagee can sue for possession and arrears under the rent note—even though the mortgagee can no longer obtain a sale of the mortgaged property. The mortgagee's rights do not merge in the preliminary decree, nor are they extinguished by limitation solely by failure to obtain a final decree.

Court Disposition

Appeal dismissed with costs.

Orders

  • The decree for ejectment of the appellant from the mortgaged house, arrears of rent (Rs. 731.75), and mesne profits at Rs. 20 per month until eviction, as passed by the courts below, are affirmed.