Surendran v. Sankara Pillai and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939** **SA.No. 713 of 1997 (B)** **-----------------------** **AGAINST THE JUDGMENT AND DECREE DATED 30-08-1997 IN AS 64/1991 of DISTRICT COURT,KOLLAM** **AGAINST THE JUDGMENT AND DECREE DATED 31-08-1990 IN OS 10/1979 of PRINCIPAL SUB COURT,KOLLAM** **APPELLANT/APPELLANT/2ND DEFENDANT:** **----------------------------------** **SURENDRAN,ANAYADI KANNIMEL VEEDU, MEMANA MURI, KRISHNAPURAM VILLAGE.** **BY ADVS.V. SURESH** **G.S.SUDHEER** **RESPONDENTS/RESPONDENT NO.1/ADDL.RESPONDENT NO.4 AND LEGAL REPRESENTATIVES OF ORIGINAL 2ND& 3RD RESPONDENTS:** **-------------------------------------------------** ***1. SANKARA PILLAI, ARIVANNOOR KIZHAKKEKARA VEEDU, MEMANA MURI, KRISHNAPURAM VILLAGE** *** DIED, LRS IMPLEADED AS ADDL.R8 TO R11** **2. RAJALEKSHMI PILLAI RESIDING AT MAYA BHAVANAM, WARD NO.8, ALA PANCHAYATH, KODUKULANJI, PENNANKARA P.O.** **3. D.S. SURESH,SAVITHRI VIHAR, NJECKANAL MURI,OACHIRA.** **4. SREENAGESH, SAVITHRI VIHAR, NJECKANAL MURI,OACHIRA.** **5. RAJESH, SAVITHRI VIHAR, NJECKANAL MURI, OACHIRA.** **6. SATHEESH, SAVITHRI VIHAR, NJECKANAL MURI, OACHIRA.** **7. JAGADHEESH PRASADH, SAVITHRI VIHAR, NJECKANAL MURI, OACHIRA.** **ADDL.R8 TO R11 IMPLEADED:** **ADDL.R8. USHA SANKARA NARAYANA KURUP, MAVIZHAKATHU HOUSE, KAVANADU P.O, KOLLAM DISTRICT.** **ADDL.R9. SHIVAKUMAR, CHANGAYIL HOUSE, RAMAPURAM, KLERIKADU P.O, ALAPPUZHA DISTRICT.** ## **ADDL.R10. SANAL KUMAR,** **ARIVANNOOR KIZHAKKEKARA VEEDU, MEMMANA, OACHIRA P.O., PIN 690 526.** **ADDL.R11. THANKAMANI, WIDOW OF LATE SANKARA PILLAI, RESIDING AT ARIVANNOOR KIZHAKKEKARA VEEDU, MEMANA, OACHIRA.** **LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDL.R8 TO R11 AS PER ORDER DATED 12.8.14 IN IA.NO.2557/10 AND IA 961/11.** **R1&R2-BY ADV.L. GOPALAKRISHNAN POTTI R1&R2 BY ADV. SMT.MAYA.P.NAIR R1&2 BY ADV. SRI.A.DINESH RAO R3 BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) ADDL.R10 BY ADV. SRI.L.GOPALAKRISHNAN POTTI** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7.6.2017, THE COURT ON 20-07-2017 DELIVERED THE FOLLOWING:** ## **K.RAMAKRISHNAN, J.** ## **-------------------------------** ## **S.A.No.713 of 1997** **-----------------------------Dated this the 20[th] day of July, 2017** ## **J U D G M E N T ------------------** Second defendant in O.S.No.10/79 on the file of the Principal Sub Court, Kollam is the appellant herein. 2. Respondents 1 and 2 herein filed O.S.No.10/79 on the file of the Sub Court, Kollam for redemption of mortgage and recovery of possession against the 3[rd] respondent and the appellant with the following allegations:- The plaintiffs are brothers and plaint schedule property originally belonged to their mother deceased Chellamma Pillai. For the purpose of construction of building on the south western portion having an extent of 6 cents, that was mortgaged in favour of 1[st] defendant and his brother Karunakara Paniker as per registered document No.4331 dated 18.7.1956 by their mother and on the basis of the arrangements made, the present building was constructed and thereafter the plaintiffs' mother obtained further amount of Rs.900/- from the 1[st] defendant and executed further mortgage as per document No.4652 dated 7.8.1957 and thereafter again another mortgage executed in favour of the 1[st] defendant for a further amount in respect of one room alone and getting the balance with the plaintiffs on 8.5.1964 as per document No.1888/64 and this document was executed for the total amount 2 SA.713/1997 of Rs.7,900/- in favour of the 1[st] defendant. While so, the 1[st] defendant let out the building to the 2[nd] defendant as his tenant and he is in possession of the same without their knowledge and consent. The plaintiffs and their mother Chellamma Pillai partitioned the property as per partition deed No.2633 dated 20.8.1973 and as per the partition deed, this property along with right to redeem the mortgage amount of Rs.7900/- was allotted to the share of the plaintiffs jointly. Chellmma Pillai died during February 1974 and thereafter the rights belong to her in the property devolved on the plaintiffs. The earlier two mortgages have merged with the last mortgage. The 1[st] defendant had constructed a godown unauthorizedly which is shown as item No.2 and the 1[st] defendant is liable to receive the mortgage amount of Rs.7,900/- and surrender possession of the property after removing the illegal construction made by him. So plaintiff sent a notice dated 9.7.76 to the 1[st] defendant asking to receive the mortgage amount and surrender possession of the property after removing the unauthorized construction made by him. He received the notice and sent a reply with false allegations. Since it was learnt that defendants 1 and 2 were attempting to make further construction and substantial renovations in order to defeat the right of the plaintiffs, they have no other option but to file the suit for redemption of mortgage permitting them to deposit Rs.7450/- after deducting Rs.480/- due 3 SA.713/1997 from the 1[st] defendant and surrender possession of the property by delivering the documents and after removing the unauthorized construction shown as item No.2. In case the 1[st] defendant is not removing the illegal construction made, then permitting the plaintiffs to deposit Rs.1000/- towards its value and get delivery of the property through court and for permanent prohibitory injunction restraining the defendants from making further construction or modification in the property and also to pay damages at the rate of Rs.60/- per year till delivery and with other reliefs. 3. The 2[nd] defendant, who is the appellant herein, remained absent and declared ex parte. 4. The first defendant entered appearance and filed written statement contending as follows:- The suit is not maintainable. The allegation of documents executed evidenced by document of 1956, 1957 and 1964 and liability created on the basis of those documents are admitted. It is also admitted that as mentioned in 1964 Otti Adharam, the building was constructed and one building was retained by the 1[st] respondent and remaining two buildings were handed over to the mortgagor. Subsequently for the entire property, subsequent mortgage was created. The allegation that item 2 constructions were made unauthorizedly is not correct. In fact, those constructions were done with the consent of the mortgagor and that 4 SA.713/1997 was made mention in 1964 Otti Adharam. The allegation that there was merger of all these mortgages is not correct. The 1[st] respondent is entitled to fixity of tenure as provided under the provisions of the Kerala Land Reforms Act and for the purpose of deciding the same, the matter has to be referred to the Land Tribunal under section 125(3) of the Kerala Land Reforms Act. Further, the building was let out to the brother of the 1[st] defendant namely Karthikeya Panicker on monthly rent and after his death, the 2[nd] defendant is in possession of the building as tenant under the 1[st] defendant. Further, the allegation that the 1[st] defendant had no right to lease out the property is not correct. Even if the mortgage is redeemed, he is entitled to retain the building so long as he wants to continue and do business in the building. He is not liable to be evicted and even if he is liable to be evicted, after redemption of mortgage, he is entitled to get the value of improvements. He was paying rent as per 1964 document up to 1975 and since the plaintiffs did not receive the same, the same has not been paid and thereby they are not entitled to set off any amount towards the mortgage amount as those claims were barred by limitation. He has spent more than 50,000/- for improving the property, which he is entitled to get in the event of redemption and eviction. The plaintiffs did not get any right on the basis of the partition deed. So he prayed for dismissal of the suit. 5 SA.713/1997 5. Thereafter the first defendant filed IA.No.854/1982 for referring the matter to the Land Tribunal to decide the question of tenancy and that was dismissed by the court below and that was challenged by the 1[st] defendant by filing CRP.No3323/1982 (F) before this Court and this Court by order dated 9.7.1986, allowed the revision setting aside the order of the court below and directed the matter to be referred to the Land Tribunal to decide issues 1 and 3 as to whether the 1[st] defendant is entitled to get fixity of tenure under the provisions of the Land Reforms Act. Thereafter the matter was referred to the Land Tribunal and the Land Tribunal as per the order in R.C.No.133/1986 found that the 1[st] defendant is not entitled to get the benefit of fixity of tenure under the Kerala Land Reforms Act and returned with the finding. 6. During the pendency of the proceedings, the matter was settled between the 1[st] plaintiff and the 1[st] defendant as the 2[nd] plaintiff had assigned his rights in the property in favour of the daughter-in-law of the 1[st] defendant and it was agreed between the parities that the 1[st] defendant had no objection in redeeming the mortgage in respect of the 1[st] plaintiff's portion by receiving proportionate amount and he has no objection in redeeming that portion and evicting the 2[nd] defendant, who is a tenant under him, as he had ratified the act of the 2[nd ] plaintiff assigning his portion of the property in the mortgage property to his daughter-in-law. It 6 SA.713/1997 was on that basis that the 1[st] defendant and the 1[st] plaintiff filed IA.No.2116/1990 under Order XXIII Rule 3 of the Code of Civil Procedure for recording compromise and dispose of the case on the basis of the compromise. Since the 2[nd] plaintiff and the 2[nd] defendant did not join in the compromise, the court below did not dispose of the case on the basis of the compromise, but recorded the compromise in respect of the claims of the 1[st] plaintiff and the 1[st] defendant and proceeded with the case and after relying on the proof affidavit filed by the 1[st] plaintiff and after considering the documents, passed a decree for redemption declaring the amount payable by the 1[st] plaintiff to the 1[st] defendant as Rs.5633.33Ps for redeeming the mortgage insofar as it relates to building No.X/665 and rear varandha and the site occupied by them and proportionate value of improvements and directed the 1[st] plaintiff to pay the amount within three months or within the time extended by the court. On such deposit, directed the 1[st] defendant to produce all the documents and surrender vacant possession of the building and the property free from all encumbrances created by him or any person including the 2[nd] defendant claiming under him and the 1[st] plaintiff is entitled to get future profits from the 2[nd] defendant, till he obtains possession. If the amount is not paid as directed, then, the 1[st] defendant is entitled to file an application for final decree that the plaintiffs shall thence forth stand absolutely debarred and fore- 7 SA.713/1997 closed of and from all rights to redeem the said property. As regards the 2[nd] plaintiff is concerned, the suit stands dismissed. 7. Dissatisfied with the same, the 2[nd] defendant filed AS.No.64/1991 before the District Court, Kollam along with IA.No.1070/1991 to condone the delay in filing the appeal and the same was allowed, delay was condoned, appeal was admitted to file and further proceedings were stayed. The plaintiff filed CRP.No.489/1993 before this Court against that order and that was dismissed by this Court by order dated 15.12.1994. Thereafter, the plaintiffs filed IA.No.277/1993 before the 1[st] appellate court intimating the death of the 3[rd] respondent that he died on 9.10.1992 and prayed for dismissal of the appeal as abated. Thereafter the appellant herein filed IA.No.403/1993 and IA.No.404/1993 to implead additional respondents 4 to 9 as legal heirs of deceased 3[rd] respondent and also to set aside abatement caused and the 1[st] respondent herein filed objection to the same. In the meantime, since the 2[nd] respondent also died, the appellant filed IA.No.1447/1995 to record the 1[st] respondent as his legal heir and also to implead additional 10[th] respondent as his legal heir and also to record additional respondents 5 to 9 sought to be impleaded as legal heirs of deceased additional 4[th] respondent and also filed IA.No.1146/1995 to condone the delay to take steps regarding respondent No.2 and additional respondent No.4 by 8 SA.713/1997 impleading their legal heirs. The Additional District Judge dismissed IA.No.403/1993 and IA.No.405/1993 by order dated 1.10.1996 stating that no application has been filed to condone the delay in filing the application for setting aside the abatement. The 1[st] appellate court also dismissed IA.No.1146/1995 and IA.No.1147/1995 by order dated 1.10.1996. The appellant filed CRP.No.2598/1996 before this Court against the order of dismissal of IA.1147/1995 alone and this Court by order dated 18.12.1996, allowed the revision in part to the extent of recording the 1[st] respondent as legal representative of the 2[nd] respondent and also to implead Rajalekshmi Pillai as other legal representative of the 2[nd] respondent in the appeal and the prayer in IA.1147/1995 for recording the legal representative of the 4[th] respondent stands rejected. It is thereafter that the appellant filed IA.No.73/1997 to review the order in IA.No.403/1993 and IA.No.404/1993 dated 1.10.1996 along with IA.No.72/1997 to condone the delay in filing the application and the learned District Judge dismissed those applications and the appellant filed CRP.No.2082/1997 before this Court challenging that order. In the meantime, the 1[st] appellate court by the impugned judgment dated 30.8.1997 dismissed the appeal holding that there is no ground made out to set aside the compromise decree as regards the 1[st] plaintiff and the 1[st] defendant and also found that since the 2[nd] defendant is only a tenant under 9 SA.713/1997 the mortgagee, his term cannot survive beyond the period of mortgage and as such, on redemption, he is liable to surrender the building and confirmed the decree and judgment passed by the court below and dismissed the appeal. Aggrieved by the same, the present second appeal has been filed by the appellant, the dissatisfied second defendant before the court below. 8. When the appeal was admitted, the following substantial questions of law have been formulated by this court for consideration: i. Will a compromise decree was binding on persons who are not parties to compromise and signatories thereof ? ii. Can there be a compromise of suit without all the parties to the suit other than proforma parties being parties and signatories to the compromise petition ? iii. Can a decree passed on a compromise to which a person is not a party be binding on him ? iv. In view of the compromise decree was the court justified it in passing the orders dated 2.8.1997 and 1.10.1996 ? 9. During the pendency of the appeal, 1[st] respondent died additional respondents 8 to 11 were impleaded as legal heirs of deceased 1[st] respondent as per order in I.A.No.2557/10 and IA No.961/2011 10 SA.713/1997 10. Heard Sri.V. Suresh, learned counsel appearing for the appellant and Sri. A. Dinesh Rao, learned counsel appearing for additional respondents 8 to 11. 11. The counsel for the appellant argued that the lower court was not justified in passing a decree, on the basis of a compromise said to have been entered into between the 1[st] plaintiff and 1[st] defendant alone, without considering the issues arose for consideration in the suit. Further the lower appellate court had not considered this aspect at all, but proceeded on the basis that even if the compromise decree is not binding on the appellant, he has no independent right as once the mortgage is redeemed, he will have to vacate the premises and he cannot have any independent right than the right conferred on the mortgagee and to that extent the order passed by the court below is not justified. Further the trial court is expected to frame issues and record finding on each issue. The decisions relied on by the lower appellate court is not applicable to rural area and as such the 2[nd] defendant cannot be evicted from the property on redemption of mortgage. Further the lower appellate court ought to have given an opportunity to the appellant to meet the case on merit. He had relied on the decision reported in **Narayanan v. Rajamany [1995 (2) KLT 351] Banwari Lal v. Smt.Chando Devi (Through L.R.) [AIR 1993 (SC) 1139], Bhaskaran Nair v. Carona Shoe Co. Ltd [1987 (1) KLT 14],** 11 SA.713/1997 **Carona Shoe Co. Ltd. v. Bhaskaran Nair [1989 (2) KLT 306 (SC)], Meenakshi v. Manikkam [1994(1) KLT 156]** in support of his case. He had also argued that the lower court ought to have allowed the applications IA Nos.72/97 and 73/97. 12. On the other hand the counsel for the additional respondents 8 to 11 submitted that the appellant was ex parte in the court below and he had not produced any document to prove his case in the lower appellate court or before this court and as such the lower court as well as lower appellate were perfectly justified in decreeing the suit. 13. The case of the plaintiffs in the plaint was that the plaint schedule property originally belonged to their mother Chellamma Pillai and she had originally mortgaged the property in favour the 1[st] defendant and his brother Karunakara Panicker for an amount of Rs.3,000/-allowing the mortgagees to construct three shop rooms in the plaint schedule property and after construction, keep one room with them and handover two rooms to the mortgagor and after payment, release the property. Thereafter, Exts.B2 and B3 mortgage deeds were executed in the years 1957 and 1964 in favour the 1[st] defendant alone and last mortgage was for a total amount of Rs.7,900/- including the mortgage amount covered by earlier two mortgages and entire property was mortgaged and possession of the property was given to the 1[st] defendant. 12 SA.713/1997 According the plaintiffs, the property was later partitioned in the year 1974 between the Chellamma Pillai and plaintiffs and this property with liability to redeem the property was allotted to them. Further Chellamma Pillai later died and her rights devolved on the plaintiffs. According to them, 1[st] defendant had let out the plaint schedule building to the 2[nd] defendant without their consent, and he had made certain unauthorized construction and that prompted them to file the suit for redemption and recovery. 14. The 2[nd] defendant who is the appellant herein remained ex parte. 15. 1[st] defendant filed written statement admitting the mortgages and construction of the building and terms of the mortgage and he claimed fixity of tenure under the Kerala Land Reforms Act. He had also contended that the constructions he made were with the consent of the mortgagor and it is not an unauthorized construction. He had also admitted that the plaint schedule building was let out to his brother Karthikeya Panicker and after his death, the 2[nd] defendant, his son who is the appellant herein is in possession of the same as a tenant under him. It is also contended by him in the alternative, in case redemption, recovery is ordered, he is entitled to get value of improvements and he prayed for dismissal of the suit. 16. Though 1[st] respondent earlier filed an application 13 SA.713/1997 referring the matter for Land Tribunal under Section 125 (3) of Kerala Land Reforms Act, but that was dismissed by the court below but, on revision the same was allowed by this court. The matter was later referred to Land Tribunal and the Land Tribunal by order in RC No.133/86 found that the 1[st] defendant is not entitled to get fixity of tenure and returned the file with that finding. But in the meantime the 2[nd] plaintiff had assigned his right in the plaint schedule property in favour of the daughter in law of the 1[st] defendant and the matter was settled between the 1[st] plaintiff and 1[st] defendant and he had agreed to redeem the properly on payment of Rs.5633.33/including the value of improvements and they filed IA No.2116/90 for recording compromise and pass decree accordingly and also the 1[st] plaintiff filed proof affidavit in tune with the allegations in the plaint. The court below accepted the compromise and also accepted the proof affidavit filed by the 1[st] plaintiff and decreed the suit. 17. It is also an admitted fact, the appellant filed A.S.No.64/91 before the District Court, Kollam with delay condonation application and the delay was condoned and appeal was admitted. Though the order condoning the delay was challenged by the 1[st] respondent by filing revision before this court, that was dismissed by this court. Thereafter the 3[rd] respondent in the appeal died and appellant filed IA No.403/93 and IA No.404/93 to set aside the abatement and to implead respondents 4 to 9 as 14 SA.713/1997 legal representatives of 3[rd] respondent. In the meantime, since the 2[nd] respondent and additional 4[th] respondent sought to be impleaded also died, he filed IA Nos.1146/95 and 1147/95 to record 1[st] respondent as one of the legal heirs and add one Rajalakshmi Pillai as additional respondent No.10 and to record other respondents as legal heirs of 4[th] respondent sought to be impleaded and lower appellate court dismissed all these applications. The appellant challenged the order in IA No.1147/95 alone by filing CRP 2548/96 before this Court and this Court by order dated 18.12.96 allowed the revision in part permitting the recording of 1[st] respondent and impleading Rajalakshmi Pillai alone as additional respondent as the legal heir of 2[nd] respondent in the appeal, but rejected the prayer in respect of recording other legal representatives of 4[th] respondent. 18. Thereafter, appellant filed IA Nos.72/97 and 73/97 before the lower appellate court to review the order in IA Nos.403/93 and 404/93 and the appellate court had dismissed those applications and later dismissed the appeal also on merit. The appellant filed CRP No.2282/97 against the dismissal of the applications IA 72/97 and 73/97, and he filed the second appeal against the dismissal of the appeal. Earlier both the second appeal and CRP No.2282/97 were dismissed for non-prosecution and thereafter he filed restoration petition and second appeal was 15 SA.713/1997 restored to file. But CRP No.2282/97 was disposed of with an observation that the impugned order can be challenged in the second appeal. 19. The question to be considered is whether the decree passed by the trial court and confirmed by the lower appellate court is liable to be set aside and whether the judgment passed by the trial court can be treated as a compromise decree as regards the appellant is concerned. The appellant was ex parte in the trial court. He did not even appear or file any written statement before the trial court. Further it is seen from the compromise petition filed between the 1[st] plaintiff and the 1[st] defendant that the right of the 2[nd] plaintiff in the plaint scheduled property was purchased by the daughter in law of the 1[st] defendant and he has no intention to proceed against that portion of the property and also he was prepared to redeem the mortgage in respect of the right of the 1[st] plaintiff after receiving the amount agreed between the parties. Even though 2[nd] plaintiff, who is the 2[nd] respondent in the appeal is no more, since one of the legal heir namely first plaintiff is on the party array, the appeal as against him is not abated and additional respondent Rajalekshmi Pillai was also impleaded as permitted by this Court. 20. As regards the 3[rd] respondent, who is 1[st] defendant in the suit is concerned, there is no valid reasons given for setting 16 SA.713/1997 aside the abatement and also no separate application was filed to condone the delay in filing the application set aside the abatement and that was the reason why the lower appellate court had dismissed the application IA No.403/93 and 404/93 filed for that purpose. The appellant had not challenged that order. When the application IA No.1147/97 and 1146/97 were dismissed and the appellant had challenged the order in IA No.1147/97 and it was only partly allowed and it is thereafter that the appellant had filed IA No.72/97 and 73/97 to review the order in IA No.403/93 with delay condonation application. In fact there is no error apparent on the face of the record in passing the impugned order in IA No.403/93 and 404/93 as there was no application filed to condone the delay in filing the application to set aside abatement and delay in filing the review petition had not been properly explained as well. So under such circumstances this court do not find any reason to interfere with the order passed by the lower appellate court in IA Nos.72/97 and 73/97. 21. As regards the compromise is concerned, the law does not prevent the matter being compromised between some of parties alone to the proceedings as regards the rights affecting them. So there is no illegality in 1[st] plaintiff and 1[st] defendant compromising the claims between them and file an application to record that compromise. Further under Order X Rule 1 of Code of Civil 17 SA.713/1997 Procedure, court can pass a decree on the basis of admissions of the parties. If the admission is only to the extent of disposing to the part of the claim alone, then court can dispose of that part of the lis between the parties on the basis of the admission and proceed with the trial of the case regarding remaining issues to be disposed of. So the trial court was perfectly justified in recording the compromise entered into between 1[st] plaintiff and 1[st] defendant and then decided to proceed with the case as against the 2[nd] defendant, who is the appellant herein and the 2[nd] plaintiff as they were not parties to the compromise. A reading of the trial court judgment will go show that it cannot be treated as a compromise decree passed as contended by the counsel for the appellant as against the appellant. So to that extent the decree and judgment passed by the court below cannot be said to be illegal. 22. As regards the right of the appellant is concerned, though it is an ex parte decree as against him, he had got two options that he can either file an application to set aside the ex parte decree passed against him or file an appeal against that decree. The appellant had opted for the second option of filing an appeal against the ex parte judgment passed against him. Since the appellant had not filed any written statement, the appellate court can only consider as to whether on the basis of the materials available, the judgment passed by the court below is correct or not 18 SA.713/1997 and the lower appellate court is not expected to go into the probable defence that may be taken by the appellant on the basis of the grounds made out by him in the appeal memorandum. Though he had a case that the building was constructed by his father even prior to impugned mortgage deeds and as a legal heir he is in possession, no documents were produced by him either before the lower appellate court or before this court to substantiate that fact so as to give him an opportunity to prove his case by setting aside the ex parte decree to the extent of his rights and remand the case to the court below as claimed by the counsel for the appellant. So under such circumstances, there is no merit in the submission made by the counsel for the appellant that the lower appellate court ought to have set aside the decree and judgment to the extent of his rights and remanded the case to the trial court for giving him an opportunity to file written statement and contest the case and that attempt is only to prolong the matter and nothing more. 23. As regards the breaking of integrity of mortgage is concerned, there is a bar under Section 60 of Transfer of property Act, and it is intended only to protect the interest of the mortgagee. In this case, the mortgagee himself had agreed to split up the mortgage and to redeem the mortgage in respect of the right of the claim of the 1[st] plaintiff by accepting the proportionate share payable by him. So bar under Section 60 of the Transfer property 19 SA.713/1997 Act is not applicable in such cases, and the mortgagee himself had agreed to split up the mortgage and allowed the 1[st] plaintiff to redeem his right in the property by paying proportionate amount as agreed between the parties. So the trial court as well as the lower appellate court were perfectly justified in allowing the plaintiff to redeem the mortgage to the extent of his right by paying the amount as agreed between the parties and decreed the suit accordingly. 24. In the written statement filed by the 1[st] defendant, his case was that 2[nd] defendant is a tenant under him and prior to that, his father was the tenant and after his death, the tenancy was permitted to be continued by the 2[nd] defendant. In view of the dictum laid down in the decision reported in **Bhaskaran Nair v. Carona Shoe Co. Ltd [1987 (1) KLT 14]** as confirmed in **Carona Shoe Co. Ltd. v. Bhaskaran Nair [1989 (2) KLT 306 (SC)]** , the position is clear that if a tenancy has been created by the mortgagee in possession, then it should not survive beyond the period of the mortgage and if the mortgage is redeemed, then the tenant who has been inducted by the mortgagee has to surrender possession of the property. Further there is nothing in the mortgage deed which permits the mortgagee to lease out the property beyond the period of mortgage so as to bind the same on the mortgagor. So under such circumstances, the lower appellate 20 SA.713/1997 court was perfectly justified in coming to the conclusion that the appellant had no independent right and once the mortgage is redeemed, he is liable to surrender the property and as such the trial court was perfectly justified in ordering surrender possession of the building by the appellant to the 1[st] plaintiff. There is no evidence to show that the building is situated not in urban area but in a rural area as contended by the counsel for the appellant so as to consider some observation made by the Apex court in this regard in the above decision. So under such circumstances, this court do not find any reason to interfere with the judgment passed by the lower appellate court confirming the decree and judgment passed by the trial court against the appellant, so as to give an opportunity to the appellant to prove his case as claimed by him as is not supported by any evidence or it has got any legal support as well. There is no substantial question of law arises for consideration in this case. The appeal lacks merit and the same is hereby dismissed. In the result, the second appeal fails and same is hereby dismissed. The decree and judgment passed by the courts below are hereby confirmed. This court do not find any reason to disallow cost to 1[st] respondent and his legal heirs in the second appeal. So the second appeal is dismissed with cost of 1[st] respondent and his legal heirs. The interim orders passed are vacated and interim SA.713/1997 21 applications if any pending are all closed. Registry is directed to communicate this judgment to the court below at the earliest. Sd/- **K.RAMAKRISHNAN, JUDGE** rmm/cl18.07.2017 /true copy/ P.S to Judge