- (1.)The short question involved in this appeal is whether the lease executed in favour of Abraham Cheriyan, husband of the mortgagee would survive after the execution of the mortgage deed. In our view from the evidence on record, it is apparent that parties expressly saved the leasehold rights. The lessee was not party to the mortgage deed and there is no evidence on record from which it can be inferred or implied that the lessee surrendered his leasehold rights. It is well established law that unless there was a surrender of leasehold rights at the time of execution of the mortgage, mortgagor would not be entitled to obtain delivery of physical possession of property on redemption of mortgage.
(2.)The relevant facts for deciding the aforesaid question are as under :-
By a document dated 12th June, 1932 for the suit proper owner executed a lease deed in favour of Abraham Cheriyan. Thereafter on 21st September, 1935 (5th Kanni 1109) (Exb. 2) usufructuary mortgage deed was executed in favour of Smt. Sosamma, wife of Abraham Cheriyan. Additional mortgage deeds were executed on 30th August, 1935 (Exb. P.10) and 8th February, 1939 (Exb. P.1). Lessee, Abraham Cherian died on 29th June, 1946. O.S. Civil Suit No. 60 of 1968 was filed before the Munsiff's Court, Chenganacherry for redemption of the mortgage property. A preliminary decree for redemption under Order 34, Rule 7 of the Code of Civil Procedure was passed on 3rd December, 1971 by the Court of Munsiff. The Court arrived at the conclusion that lessee's right would merge at the time of execution of the mortgage deed. Appeal A.S. No. 100 of 1972 was allowed by the Additional Sub-Judge by a judgment and decree dated 5th July, 1973 by holding that the finding given by the trial Court that lease in favour of Abraham Cherian merged when mortgage deed was executed in favour of the first defendant cannot be upheld. Against the judgment and decree, Second Appeal No. 995 of 1975 was filed before the High Court of Kerala. By a judgment and decree dated 29th June, 1979, the learned single Judge allowed the said appeal by holding that Exbs. P-1, P-2 and P-10 create mortgagor and mortgagee relationship between the parties. The Court held that the lease arrangement in favour of the first defendant's husband Abraham Cherian would not survive after execution of the mortgage deed for the said property. The Court considered that though the deceased-Abraham Cherian was not an actual party to the mortgage transaction yet a reasonable inference could be drawn that the transaction was really entered into by Abraham Cherian himself through his wife and, therefore, the lease prior to the suit transaction in favour of Abraham Cherian will not survive and the defendants cannot claim any right of fixity of tenure on the basis of the lease. The Court, therefore, restored the preliminary decree under Order 34, Rule 7 of the Code of Civil Procedure for redemption of the mortgage.

(3.)At the time of hearing of this appeal, learned Counsel appearing for the appellants referred to the mortgage deed and additional mortgage deeds to show that by the said deeds rights of lessee are expressly saved.