ORDER
1. The plaintiff in O.S.No.535 of 1980 on the file of the District Munsif, Tenkasi, filed the second appeal. Pending second appeal he died and his legal representatives have come on record as appellants 2 to 8.
2. The first appellant filed the suit for redemption of a mortgage executed by himself and his father one Muthukrishna Naidu on 12.12.1969 under the original of Ex.A-1 in the suit. The property mortgaged was situate in the Fourth Ward in Tenkasi Municipality in S.No.356/1A1A measuring 3-1/4 cents in the northern portion. According to the plaintiff, possession also was given to the first defendant, (who died pending suit and his legal representatives were brought on record as defendants 2 to 5). The second defendant is the fourth respondent in the appeal and defendants 3 to 5 are respondents 1 to 3 in the second appeal. On the same day Ex.A-1 was entered into, there was an agreement between the parties evidenced by Ex.A-4, as per the terms of which the first defendant agreed to deliver the property when the plaintiff paid the principal amount. It was the further case of the plaintiff that in spite of repeated demands, the first defendant refused to receive the principal amount and to deliver the mortgaged property to the plaintiff. A notice under the original of Ex.A-10 was issued to the first defendant, which provoked a reply under Ex.A-11 dated 4.5.1977 stating that the first defendant had constructed a permanent building in the mortgaged property and he was entitled to the benefits of the Tamil Nadu City Tenants Protection Act (hereinafter referred to as the Act). The first defendant was not entitled to the benefits of the Act, but the plaintiff and his father had put up a thatched shed in an extent of one cent, which shed rested on a common wall on the west, that a mud wall was put up and on the south wooden planks were put up. The premises were given number as Door No.16-E and the same was registered in the name of the plaintiff’s father in the Municipal Records. The first defendant had taken possession of the shed on rent on 13.4.1968 as per Ex.A-15. The first defendant had removed the thatched roof without the consent of the plaintiff and put up an asbestos roof. The first defendant had also assigned the mortgage debt to his mother, the second defendant in the suit. The amount of Rs.2,500 due under the mortgage had also been deposited in Court.
3. The first defendant filed a written statement contending inter alia as follows:
The vacant land originally belonged to the plaintiff and his father. The first defendant took the vacant site in the year 1965 on a monthly rent of Rs.15. In 1968 a building was put up in the northern portion of the suit property. In
1971 the first defendant submitted a plan for approval to the Municipality for construction of a new building. His name was also registered in the Municipality as the owner of the premises. He himself obtained electricity connection in his own name. He had been paying the taxes for the building and he had been running a business there. The first defendant was a tenant in respect of the vacant site. It was true that the mortgage deed was executed on 12.12.1969 for Rs.2500 by the plaintiff and his father. It was not true that the first defendant was in possession of the entire land in lieu of interest towards the mortgage debt. The plaintiff had suppressed the fact that the first defendant had been in possession of the property as a tenant even prior to 12.12.1969. The first defendant had assigned the mortgage on 17.7.1974 under the original of Ex.A-9 to the second defendant, his mother, and he had been paying the rent to the second defendant. The agreement Ex.A-4 was not valid in law and was not admissible in evidence. What was agreed between the parties was that the interest due on the mortgage was to be adjusted in the rent payable by the first defendant to the plaintiff. The first defendant had put up a permanent building and he was entitled to the benefits of the Act.
4. The second defendant filed a written statement disputing Ex.A-4 agreement and also stating that she had not received any interest from the first defendant after 17.7.1974, the date of assignment in her favour under the original of Ex.A-9. The suit was bad for non-joinder of parties.
5. The first defendant filed I.A.No.1795 of 1982 before the trial Court under Section 9(1)(a)(i) of the Act contending that he took the vacant site in the year 1965 on rent and agreed to pay Rs.15 per month and he put up a building in 1968 and also put up further construction in 1971. His name had been entered as the owner of the superstructure in the Municipality. He had also electrified the building. The plaintiff and his father executed a simple mortgage under the original of Ex.A-1 on 12.12.1969, that it was agreed that the rent payable for the site was to be adjusted towards the interest payable under the mortgage, that he was in possession as a tenant and in his capacity as mortgage he assigned the mortgage in favour of the second defendant in the suit and that he was paying rent to her and that he was entitled to the benefits of the Act.
6. The petition was opposed by the plaintiff contending that the first defendant had entered into an agreement on 12.12.1969 under Ex.A-4 as per the terms of which he agreed to enjoy the thatched shed belonging to the plaintiff and the vacant site measuring one cent, that he was not a tenant after 12.12.1969, that he had replaced the thatched roof without the consent of the plaintiff and his father and he had not put up any construction in the premises and the petition was liable to be dismissed.
7. On the above pleadings, the learned District Munsif framed the necessary issues and points for consideration and held that the plaintiff was entitled to redemption, that he was entitled to payment of mesne profits from defendants 2 to 5, that the defendants were not entitled to the benefits of the Act. So holding by judgment and decree dated 13.12.1984 the learned District Munsif
decreed the suit and dismissed the application filed by the first defendant. Defendants 3 to 5 filed appeals A.S.No.17 of 1985 against the dismissal of the main suit and A.S.No.49 of 1986 against the dismissal of the application under Section 9 to the Subordinate Judge’s Court, Tenkasi. The learned Subordinate Judge by judgment and decree dated 4.8.1988 allowed appeal A.S.No.17 of 1985 and modified the decree of the trial Court holding that the plaintiff was entitled to a decree for redemption of mortgage alone and he was not entitled to recovery of possession in as much as the first defendant was a tenant. So far as the appeal against the dismissal of the application under Section 9 was concerned, the learned Subordinate Judge dismissed it with an observation that the question whether the defendants were entitled to the benefits of the Act was left open to be decided in a separate suit to be filed by the plaintiff for possession of the mortgage property after redemption.
8. It is as against the decision in A.S.No.17 of 1985 the present second appeal has been filed. At the time of admission the following substantial questions of law were framed for decision in the second appeal:
(1) Whether the tenancy of the respondent is extinguished the moment the respondent executed Ex.A-4 ?
(2) Whether the respondent is entitled to the benefits of the Tamil Nadu City Tenants Protection Act, having regard to the fact that what was leased out is not merely a vacant site, but also a superstructure ? and
(3) Whether the lower Appellate Court is justified in refusing the relief of recovery of possession without deciding the question regarding the entitlement of the respondent to the benefits of Tamil Nadu City Tenants Protection Act ?
9. Mr. Chandrakanthan, learned counsel for the appellants, contended that Ex.A-4 agreement would clearly show that the first defendant was a tenant in respect of the superstructure and the lower Appellate Court was in error in holding that Ex.A-4 could not be looked into as it was an unregistered document. The learned counsel submitted that after the first defendant became a mortgagee of the property in question, the tenancy right came to an end and thereafter his possession was only in the capacity of a mortgagee and not as a tenant. According to the learned Counsel, the lower Appellate Court has erred in holding that the first defendant continued to be in possession as a tenant even after the execution of Ex.A-4 in spite of the unambiguous and clear terms of the document that the respondent was put in possession as a mortgagee in lieu of interest. It was the further submission of the learned counsel that the lower Appellate Court ought to have held in the proceedings that the defendants were not entitled to the benefits of the City Tenants Protection Act.
10. Per contra, the learned counsel for the contesting respondent contended that the order of the lower Appellate Court cannot be taken exception to and that Ex.A-4 was rightly not taken into consideration as it
was an unregistered document. It could not be looked into for any collateral purpose even and the lower Appellate Court ought to have rejected Ex.A-4 in toto. If once this position was reached, the plaintiff having admitted that the first defendant started as a tenant, the mere fact the mortgage was executed, would not mean that he had ceased to be a tenant.
11. Admittedly, the mortgage is a simple mortgage. The terms of Ex.A-1 are clear and unambiguous, that is to say that under the mortgage, the first defendant was not given possession of the property subject matter of the proceedings. He had possession of the property even earlier in his capacity as a tenant. So far as Ex.A-4 is concerned, it purports to vary the terms of Ex.A-1. The original of Ex.A-1 is a registered document. Under Section 92 of the Evidence Act, the terms of the mortgage which is a registered document, can be varied only by another registered instrument. When Ex.A-4 does not satisfy the requirement of Section 92 of the Evidence Act, it could not be looked into for the purpose of finding out whether there was variation of the terms of the mortgage. When that is the position, the lower Appellate Court was perfectly justified in granting a decree for redemption without granting the prayer of the plaintiff for recovery of possession in view of the fact that the plaintiff had admitted the tenancy of the first defendant and even according to the plaintiff, he became a tenant in the year 1965 long before the mortgage deed came into existence. Rightly has the lower Appellate Court found that the question whether the defendants would be entitled to the benefits of the City Tenants Protection Act, has to be decided in the contemplated separate proceedings by the plaintiff’s legal representatives.
12. The first substantial question of law is therefore answered against the appellant and so far as the other two substantial questions of law are concerned, the same do not arise for consideration in the present second appeal. Consequently, the second appeal fails and the same is dismissed. There will be no order as to costs.
