JUDGMENT
M.W. Deo, J.
1. Anandrao and Gajanandrao were brothers. They owned the suit property. These two brothers mortgaged the suit house by registered mortgage-deed dated 28-4-1947 in favour of Radhakishan for a sum of Rs. 1,500/ -. It was a possessory mortgage. A supplementary mortgage of Rs. 800/- was also made in favour of Radhakishan. Later on there was a partition between the mortgagee Anandrao and Gajanandrao with the result
that the suit house fell to the share of Anandrao. In the meanwhile the mortgagee Radha-kishan, transferred his rights in favour of Ramgopal.
2. The mortgagee, Radhakishan, had let out two rooms on the ground floor of the mortgaged house to the present appellant Hariram as a monthly tenant on a rent of Rs. 35/- per month. We are not concerned with the possession of the other portion of the house.
3. Anandrao filed the original suit for redemption as he had deposited the entire money and costs both payable under the mortgage on 3-8-1972. Anandrao also claimed possession by evicting Hariram (present appellant) from the suit premises. In this suit Ramgopal was arrayed as defendant No. 1, Laxmibai (widow of Radhakishan) as defen-dent No. 2, Hariram, the tenant (present appellant) as defendant No. 3 and Gajanand-rao, the brother of Anandrao as defendant No. 4.
4. The trial Court decreed the suit for redemption as against Ramgopal and Laxmibai. As there was no question of accounts, a final decree for redemption was passed. It was further held that Hariram, the tenant, from the mortgagee, had no right to continue in possession after redemption and, therefore, a decree for eviction was passed against him.
5. The mortgagee Laxmibai and the purchaserfrom mortgagee Ramgopal did not file any appeal against the decree for redemption. Nor did brother Gajanandrao take any appeal from the judgment of the trial Court. Thus the decree for redemption vis-a-vis these three defendants undisputedly become final.
6. Hariram, the tenant, filed first appeal against only eviction part of the decree as is clear from the memo of appeal. The first appeal filed and, therefore, it is Hariram who has now come up in second appeal against confirmation of decree for eviction.
7. Learned counsel for the appellant first of all contended that the mortgage. Ex. P-1, has not been duly proved. It so happened that Ex. P-1 was filed by the plaintiff as a manuscript copy of the mortgage. The counsel for the mortgagee and his vendor admitted the document and so it was marked as Ex. P-1. The learned counsel was at pains to contend that there was no copy of endorsement of the registration on back of the document, that it was not a certified copy and, therefore, the mortgage was not at all proved. The contention was very laboriously put during appeal. The contention was, however, repelled by the respondent by submitting that the fact of mortgage as pleaded by the plaintiff was admitted by the mortgagee as well as his vendor Ramgopal in the written statement paras 1 and 3.
8. The contention of the learned counsel for the appellant that the fact of mortgage was not admitted by the present appellant Hariram, (who) was silenced by reference to his plea in para 3 of the written statement in answer to para 3 of the plaint in which the mortgage with full particulars is pleaded. Para 3 of the written statement of Hariram merely denied the allegation for want of knowledge.
9. Let the question of proof of partition be also dealt with at this stage as it sails in the same boat as the fact of mortgage regarding its proof. The position of pleadings regarding allegation of partition between Anandrao and Gajanandrao made in the plaint is the same as that of the mortgage. In other words, the present appellant had denied allegation of partition for want of knowledge.
10. It is to be seen that in the case of Samrathmal v. Union of India, Ministry of Railway, AIR 1959 Madh Pra 305, a Division Bench of G.P. Bhutt, C.J. and T.P. Naik, J. held in para 22 that:–
“A denial of the knowledge of a particular fact is not a denial of the fact and has not even the effect of putting the fact in issue.”
11. It was further held under OrderS, Rule 5, C.P.C. in the case of Dhanbai v. State of Madhya Pradesh, 1978 MPLJ 717 : (AIR 1979 Madh Pra 17) (Division Bench) that denial for want of knowledge amounts to an admission. Reliance was placed on the case of Jahuri Sah v. D.P. Jhunjhunwala, AIR 1967 SC 109. The dictum in the aforesaid cases fully applies to the facts
in hand. In the context of facts of the case also it appears reasonable that the appellant himself claiming to be a tenant from the mortgagees, had no interest in denying the fact of mortgage or the partition. Be that as it may, as a result of the aforesaid dictum, the written statement of the appellant of denial for want of knowledge amounts to an admission under Order 8, Rule 5 C.P.C. He shall be deemed to have admitted the facts of the first mortgage and supplementary mortgage and the partition specifically pleaded in the plaint.
12. It may be mentioned here that it was submitted for the respondents that the decree for redemption in favour of respondent Anandrao alone on the basis of partition between him and his brother Gajananadrao has become final inasmuch as the present appellant Hariram did not take any appeal against it. Learned counsel for Hariram no doubt has sought to raise the question in the present second appeal, but that is in vain. Because, the learned counsel for the respondents is absolutely correct when he contends that mortgagees or his successor-in-interest did not file any appeal against decree for redemption; and that even the present appellant did not file appeal against decree of redempttion, but chose to restrict his first appeal only to the eviction part of the decree valuing it on the basis of twelve months rent. That is not all. It was pointed out for the respondent Anandrao that even in the memo of appeal the present appellant Hariram based his contention on an assumption that a decree for redemption has been passed and, therefore, raised grounds against his eviction vis-a-vis Section 76(a) of the Transfer of Property Act and protection under the M.P. Accommodation Control Act, 1961, as a consequence of redemption. The learned counsel for the appellant, therefore, could not carry the challenge to this aspect any further. Thus, the decree for redemption based on partition between Anandrao and Gajanandrao has become final and respondent Anandrao is now the sole mortgagor.
13. That brings us to the main and central controversy in the second appeal after wading
through the aforesaid technicalities of fact and law raised by the appellant. It falls into three parts, namely (i) that the appellant-tenant was entitled to protection against eviction under the M.P. Accommodation Control Act, 1961 and could not be evicted without making out a ground under Section 12(1) of that Act; (ii) that the partition having not been proved, the Anandrao would be party subrogated to the possession of mortgagee and, therefore, a decree for eviction could not be passed; and (iii) that Section 76(a) of the Transfer of Property Act is an exception to Section 111-C of the Transfer of Property Act and in as much as the lease in favour of appellant is by mortgagee, made in the prudent mana-gemenfof the mortgaged property, the lease was binding on the mortgagor and, therefore, the appellant would not be evicted without a regular suit for possession.
14. It will take up the second part first. It has been held above that the partition shall be deemed to have been proved as admitted. A long arguments which was addressed on the subject of subrogation, therefore, now becomes devoid of substance. Even otherwise there could be no case of subrogation between the two co-mortgagees, but in law there would be a case of contribution and adjustment of equities with which the appellant had no concern.
15. That brings us to the first part. The learned counsel for the respondent No. 1 relied on the case of Carona Shoe Co. Ltd. v. K.C. Bhaskaran Nair, AIR 1989 SC 1110, in which their Lordships of Apex Court concluded as follows in view of the decision in the earlier case of Pomal Kanji Govindji v. Vrajlal Karasandas Purohit“, AIR 1989 SC 436 (Para II): –
“except in cases where the leases specifically and categorically 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 mortgagee would be entitled to the protection under the Rent Act after the redemption of mortgage and in no other cases.”
(Underline supplied)
16. It is, therefore, not necessary in the interest of brevity to repeat the entire logic constituting the rival contentions in view of clear law laid in aforesaid two decisions of Supreme Court. The concluded dictum of the Supreme Court clearly is that where a possessory mortgage comes to an end by redemption then the mortgagor gets back his own right not as successor-in-interest in mortgagee. The interest, if any, created by the mortgagee on the mortgagor’s right (lease in favour of Hariram in this case) must disappear on ceasing of interest of mortgagee and consequently a lessee from such a mortgagee cannot be said to be either tenant of the mortgagor, nor can the mortgagor be called to be a landlord within the meaning of the special definitions of ‘tenant’ and ‘landlord’ respectively as provided under the M.P. Accommodation Control Act, 1961.
17. It may be mentioned here that a long argument was advanced in this matter also contending inter alia that there is a hypothetical landlord contemplated under second part of the definition of “landlord” under Section 2 of the Act and, therefore, the mortgagee’s tenanat will continue to have protection of the Act. It is pertinent to note that such a contention was negatived in the case of Carona Shoe Co. Ltd. (supra) where the defintion of “landlord” of the Kerafa Act has been extracted and that is identical with the defintion of the M.P. Act. For another, similar view was taken vis-a-vis the M.P. Act itself in the case of Sachalmal Parasram v. Mst. Ratanbai, AIR 1972 SC 637.
18. The learned lower appellate Courts have also arrived at the same conclusion that the appellant was not entitled to protection under the M.P. Act by relying on case of M/s. Sachalmal Parasram. This view could not be repelled by good authority from the side of the appellant.
19. That brings us to the last question vis-a-vis Section 76(a) of the Transfer of Property Act raised on behalf of the appellant. The learned counsel for the appellant firstly contended that he had applied for amendment of the written statement in the first appellate Court to introduce allegation that the lease
of the premises by the mortgagee to Hariram was an act of prudent management of the mortgagee and that the application was wrongly rejected by the first appellate Court. He, very strongly, repeated his prayer for allowing that application for amendment and remanding the case back to the trial Court for trying the basic question of prudent management. The learned counsel for the appellant relied upon the case of Madanlal v. Badri Narain, (1987) 3 SCC 460 to contend that whether a lease is an act of prudent management is a basic question to be tried in a suit. For one reason in the case of Madanlal (supra) the facts were different. It was a case where the tenant of a mortgagee was seeking injunction against the mortgagor on redemption of the mortgage on the basic contention that there was stipulation contained in the mortgage-deed to lease out the property. That was controverted by the other side. In the alternative it was contended that despite such stipulation the leasing out was not in prudent management and, hence in this controversy the fact of prudent management of the property was taken to be a basic issue for deciding question of injunction. The facts in our case are different. Again the case of Madanlal (supra) has now been left behind after the two decisions by the Supreme Court in the case of Pomal Kanji Govindji (AIR 1989 SC 436) and Carona Shoe Co. Ltd. (AIR 1989 SC 1110) (supra).
20. Once again a close look at the case of Carona Shoe Co. Ltd. (AIR 1989 SC 1110) (supra) and particularly to the following passages in para 15 and para 11 answer the contention about Section 76(a) of the Transfer of Property Act also.
Para 15. “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 on expiry of the period of mortgage. 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 must disappear on ceasing of interest of the mortgagee.”
Again in para 11, it has been held as follows
Para 11 . “These contentions, in our opinion, are concluded by the decision of this Court in Pomal Kanji Govindji v. Vrajlal Karasandas Purohit, (1988) 4 JT 307 : AIR 1989 436, wherein it was held that except in cases where the leases specifically and categorically make exceptions in favour of the tenant 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 mortgagee would be entitled to the protection under the Rent Act after the redemption of mortgage and in no other cases.”
(Underline supplied)
21. A close reading of para 11 above shows that it actually deals with an exception sought to be argued on behalf of the appellant vis-a-vis Section 76(a) of the Transfer of Property Act. The Supreme Court clearly holds the exception, to mean that it is made up of two parts, namely (i) the lease by the mortgagee should be for a period more than period for mortgage entitling the mortgagee’s tenant to continue in possession after the expiry on the period of mortgage; and (ii) such lease should be an act of prudent management. The Supreme Court at the end of the paragraph closes the chapter by the authoritative and emphatic conclusion that such a exemption will not be available in any other cases by the words:– ‘and in no other cases’.
22. Attention was drawn to para 16 of the judgment in the case of Carona Shoe Co. Ltd. (AIR 1989 SC 1110) (supra). In this paragraph a reference is made to the case of Pomal Kanji Govindji (AIR 1989 SC 436). It was said that at the end of para 16 it was held in Pomal Kanji Govindji’s case that the act of lease was not a prudent act of management and, therefore, the question whether even in the case in the our hands the act of lease was an act of prudent management or not is question to be tried and, therefore, the amendment should be allowed.
23. A reading of Pomal Kanji Govindji’s case (AIR 1989 SC 436) (supra) particularly
reference to paras 40 and 41 thereof would clearly show that the question of the right of the tenant to continue in possession as a consequence of Section 76(a) vis-a-vis Section 111C of the Transfer of Property Act was discussed and it was held at the end of para 42 at page 455 of AIR that:–
“It has been held by this Court in numerous decision that in case of immovable properties in urban areas, unless the leases specifically and categorically make an exception in favour of the tenant that they would continue in possession even after the expiry of termination of the leases, and those leases were acts of prudent management, in no other case, the tenants inducted by the mortgagee would be entitled to the protection under the Rent Act after the redemption of mortgage.
24. The questions of protection under the Rent Act and of Section 76(a) being an exception to Section 1 ll(c) of the Transfer of Property Act to give to the tenant right to continue in possession after the expiry of the mortgage on redemption are inter-linked. In view of the aforesaid dictum of the Supreme Court no categorical and specific clause was either pleaded or contended even now on behalf of the tenant to be presented in the mortgage-deed to enable the tenant to continue in possession after the redemption. Therefore, there was no question in the facts of the present case, of an act of prudent management. The law laid down by the Supreme Court is thus clear that where the right of the tenant to continue in possession of the property under the lease by the mortgagee is conterminous with the mortgage, there is no question of an exception under Section 76(a) vis-avis Section 111(c) of the Transfer of Property Act. A question of such exception will arise only where a clause in the mortgage-deed categorical and specifical provides a right to continue in possession after redemption. That is not the position in our case. Consequently the learned lower appellate Court was right in not allowing the amendment application as the question was wholly inconsequential in view of the law laid down by the Supreme Court.
25. The learned counsel for the appellant
submitted (it is in line with the observation in the Commentary of Mulla’s Transfer of Property Act, 7th Ediction, Pages 513 and 514) that reference to exception under Section 76(a) of the Transfer of Property Act on the ground of the property being urban or agricultural is obiter and that the existence of such exception will not depend upon such categorisation. The learned counsel for the respondents, with great amount of industry relied upon the case of Lalji Purshottam v. Thacker Madhavji Meghaji, AIR 1976 Gujarat 161 (FB) which explains in detail the reasoning for the rational for categorisation. It is further shown that the law laid down in Lalji Purshottam’s case (supra) has been upheld by the Supreme Court as correctly enunciated. (Para 44 of Pomal Kanji Govindji’s case) (AIR 1989 SC 436), Therefore, the question is really no more res integra before this Court.
,26. It was contended by the learned counsel for the appellant, in view of the State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647, that a case is a precedent for what it decides. This principle is really salutary. What was decided in the case of Carona Shoe Co. Ltd. (AIR 1989 SC 1110) (supra) ? It was decided that where a lease, to be conterminous with the mortgage, was created by the mortgages, the lease does not have protection either under S.76(a) of the Transfer of Property Act or under the Rent Act. That precisely is the position in the undisputed facts of our case. In our case the lease in favour of the appellant was created by the mortgagee and it is not the case of the appellant that under the mortgage the tenant has a right to continue to be in possession beyond the term of the mortgage. Consequently the case of Carona Shoe Co. Ltd. (supra) is a direct precedent for the case in hand and hence there is no doubt whatsoever that in the light of the law laid down by the Supreme Court, the mortgagor is entitled to evict the appellant Hariram.
27. In the result there is no merit in the appeal which is dismissed with costs. As observed in the case of Carona Shoe Co. Ltd. (AIR 1989 SC 1110) (supra), it is deemed just and fair to give time to the appellant to evict the premises up to 31st October, 1991. Counsel’s fee Rs. 1000/-, if certified, in view of the contest in this appeal.