advancing a loan on mortgage expressly does nothing the law should attribute and ascribe to him a suicidal intention to surrender his tenancy by virtue of the fictional doctrine of merger (about which the poor tenant obviously knows nothing) says the respondent. And it is this proposition which inter alia calls for scrutiny in this appeal.

(2) On March 14 1947 the owners of the suit fields which according to the appellant were in his possession as a sitting tenant since more than 6 years before the date of the transaction transferred the same to one Vadilal under a registered document Ex. 54. Whether the document is one of an outright sale or one creating a mortgage by conditional sale is one of the questions which confronts the Court in the present matter. 2 1/2 months thereafter the transferee Vadilal executed document Ex. 25 transferring such rights as he had acquired from the original owners to the appellant who claims to be the sitting tenant. Some 18 years thereafter on April 22 1965 the original owners transferred to the respondentplaintiff their right title and interest in these fields. Some 2 years later i.e. some 20 years after the original transaction between the owners and Vadilal on April 7 1967 the heirs of Vadilal (Vadilal having died meanwhile) executed a document Ex. 27 in favour of the respondent-plaintiff. And without losing any time i.e. within three months of the acquisition of the rights from Vadilals heirs the respondent-plaintiff instituted the suit giving rise to the present appeal. He came to the Court with the case that the transaction between the original owners and Vadilal reflected in Ex. 54 was of mortgage by conditional sale. It was also his case in the plaint that subsequently a sub-mortgage had been created by Vadilal in favour of the appellant-defendant under Ex. 25. And furthermore it was his case that he had acquired the right of redemption from the original owners and was entitled to redeem the properties from the appellant-defendant. It was his alternative case that in the event of the Courts holding that the transactions in question created an absolute sale in favour of the transferee he was entitled to specific performance of the stipulation contained in the documents extending to the transferor the option to claim reconveyance of the properties in question. In paragraphs 8 and 9 of the plaint it was made abundantly clear that the relief claimed was one for redemption and in the alternative for specific performance. In other words the main relief claimed by the plaintiff was for redemption and only in the alternative the relief for specific performance of covenant to reconvey was claimed.

(3) The appellant-defendant who claimed to be the sitting tenant from before 1942 i.e. from about 6 years prior to the first transaction of 1947 presumably became panicky and resisted the suit inter alia by contesting the claim of the plaintiff that the documents in question created a mortgage by conditional sale in favour of the transferees. He assumed the posture that the documents created an out and out sale. This stand was presumably taken because the appellant-defendant in order to protect his long standing tenancy wanted to advance the contention that the stipulation to reconvey embodied in the aforesaid documents was of a personal character and that it was neither capable of being assigned in favour of a third party nor capable of being enforced by a third party. Be that as it may the appellant-defendant contended that the transaction was of the nature of absolute sale and that the covenant embodied therein for reconveyance was incapable of being enforced. The stand was also taken that he was a sitting tenant and he was not liable to be evicted having regard to the protection afforded by the Tenancy Act. A contention was also raised to the effect that the transaction relied upon by the plaintiff was hit by secs. 63 and 64 of the Bombay Tenancy and Agricultural Lands Act 1948 and was accordingly void. It was also alleged that the parties had colluded in order to deprive him of his tenancy rights and to dispossess him of the fields in question. Some other contentions were also raised in the written statement to which a detailed reference is unnecessary at the present juncture. The trial Court did not accept the case of the plaintiff that the relevant transactions created a mortgage by conditional sale. The trial Court however upheld the alternative case of the plaintiff that what was created by the aforesaid transactions was absolute sale in favour of the transferee coupled with a stipulation to reconvey. The trial Court was however of the opinion that the covenant for reconveyance was of a personal character and was not capable of being assigned. Having regard to this view the trial Court was of the opinion that the plaintiff in his capacity as the assignee from the purchaser was not entitled to obtain specific performance of the said covenant. The trial Court accordingly dismissed the suit. The respondent-plaintiff appealed to the District Court. The learned Extra Assistant Judge who heard the appeal concurred with the view taken by the trial Court that the transactions created an out and out sale in favour of the transferees. He however differed from the learned trial Judge in regard to the question whether the covenant to reconvey was of a personal character and whether it was assignable. In his opinion it was assignable. He accordingly came to the conclusion that the plaintiff was entitled to succeed. With regard to the physical possession also the learned appellate Judge was of the view that the plaintiff was entitled to claim physical possession. He accordingly decreed the plaintiffs suit and directed the appellant-defendant to execute a deed of reconveyance in favour of the plaintiff in terms of document Ex. 25 dated May 29 1947 on payment of Rs. 2500/and further directed him to hand ever physical possession of the property to the respondent-plaintiff. The defendant who claims to be a sitting tenant from in before the execution of the first document has now invoked the jurisdiction of this Court under sec. 100 of the Code of Civil Procedure by way of the present second appeal.

(4) The first question is as regards the true nature of the transactions reflected in Ex 54 Ex. 25 and incidentally in regard to the other two documents. So far as Ex 54 is concerned it opens with the recital to the effect that a sum of Rs. 2500/in cash had been taken by the transferor from the transferee in order to meet the expenditure in connection with a marriage in the family. On the heels of the aforesaid statement is a recital to the effect that in consideration of the aforesaid sum of Rs. 2500/the properties described in the document were being sold. further onwards it has been mentioned that the transaction has been effected toward *** the sum referred to earlier. For the sake of preciseness the relevant recitals may be quoted in the words of the document in Gujarati. *** Thereafter it has been mentioned in the document that the transferee would become an owner but one paragraph later it has been mentioned that the transferee would become an absolute owner of the property provided the sum of Rs. 2500/was not returned within the stipulated period of 21 years. It was provided that if the sum was returned the property would have to be reconveyed by the transferee to the transferor at the cost of the transferor. Now barring the user of the expression sold at one place and the user of the expression owner at another place all the recitals and the stipulations clearly point at the relationship of mortgagor and mortgagee. The document will have to be interpreted as a whole with the end in view to re-concile the various recitals and covenants. If it was a transaction of absolute sale it would not have been mentioned in the document that the transferee would become an absolute owner only provided the sum of Rs. 2500/was not returned within the stipulated period of 21 years. This clause clearly shows that the vesting of the property was postponed for 21 years. The very fact that this statement has been incorporated in the document itself is also indicative of the relationship of mortgagor and mortgagee. What is however of much greater importance is the circumstance that a long period of 21 years is provided for exercising the right to claim reconveyance. If the transferee was purchasing the property out right why should he agree to keep the matter wide open for as many as 21 years during which his title would remain in an incohate and nebulous form that is to say it would remain in jeopardy of being annulled. The user of the expression return of Rs. 2500/also indicates the existence of the relationship of debtor and creditor. The question of return can only arise in case of debt. It cannot arise in the context of an outright sale. Again the fact that the agreement provided for reconveyance on the return of the identical amount of Rs. 2500/also impels one to the conclusion that it was a transaction of mortgage by conditional sale. Would a purchaser give a onesided option to the vendor to reverse the transaction at any time within 21 years irrespective of the appreciation in the value of the property If he was desirous of purchasing a property (and not of advancing monies against the security of immovable property) it is difficult to conceive why he should agree to such a stipulation particularly when the time provided was as long as 21 years. One who intends to purchase a property outright wants the property in specie and does not think of reselling it except when it fetches a better price and brings profit to him or when he is in need of a cash or when he wants to change the nature of his investment by selling one property and purchasing another. There is no reason why he should agree to a transfer at any time within 21 years at the choice of the transferor at the same price unless of course (which appears to be the case) it is not a transaction of purchase of property but a transaction of investing money by way of mortgage by conditional sale the property being available by way of security for the advance. There is also yet another circumstance which buttresses this inference. The transferors who executed document Ex. 54 in favour of Vadilal themselves executed the document Ex. 24 in favour of respondent-plaintiff on 22-2-65 and in this document executed 18 years after the original transaction there is a clear recital to the effect that the transaction dated March 14 1947 reflected in Ex. 54 was one of conditional sale. And under the circumstances it is not surprising that the plaintiff himself came to the Court on the premise that the transaction was one of mortgage by conditional sale and his substantive plea and the prayer that he made was one for redemption based on the assumption that it was a transaction of mortgage. The cumulative effect of all these circumstances leaves no room for doubt that the transaction operate as sales cannot be sustained. The true effect of these transactions considered in the light of the aforesaid circumstances clearly establishes that the transactions create mortgage by condition sale and not an absolute sale 6 It is however argued by counsel for the respondent-plaintiff hat the appellant should not be permitted to urge that the transactions in question create a mortgage and not a sale. I fail to understand why the appellant should be prevented from urging that the finding recorded on this point by the lower Court is wrong. In the trial Court the suit was dismissed and therefore it was not necessary for him to appeal to the District Court. It is true that in the District Court he argued that the transaction was one of sale and not of mortgage. But the question as regards the true nature of transaction is a question of law so far as the present case is concerned. It is not a question of fact. Assuming that uDder some misconception or being ill-advised it was argued that it was a transaction of outright sale and not mortgage this Court is not obliged to prevent him from correcting the mistake. At the highest it was a concession on a question of law. It cannot be called into aid by the other side by contending that the appellant should be prevented from urging this point. There is no question of estoppel for obvious reasons. Strangely enough the respondent contends that the appellant should not be permitted to argue that it was a transaction of mortgage though he himself should be permitted to argue that it was not a transaction of mortgage notwithstanding the fact that he himself from the very inception has been persistently asserting that it was a transaction of mortgage. I have referred to the relevant averments in the plaint and the main relief for redemption claimed by him in the plaint in the earlier part of the judgment in this connection. Unless the appellant has forfeited his right to urge a point under any provisions of law he cannot be prevented from doing so. It makes one feel sad that the emphasis should be on whether or not a point should be allowed to be urged:- not on whether or not there is merit in the contention. The Court desirous of doing real and substantial justice cannot persuade itself to take a view which would defeat the ends of justice. Since on merits I am of the view that the transaction is one of mortgage as has been contended by the respondent-plaintiff himself from the inception the appellant-defendant cannot be precluded from contending likewise. The only argument canvassed by counsel for the respondent was in the form of a question :- How can the appellant be permitted to argue contrary to the stand taken by him in the lower appellate Court The answer to this argument in a way can be given by posing a counter question as to why he cannot be allowed to urge so particularly when in essence such was the very case of the plaintiff himself as set out in the plaint A defendant can at any stage say that I abandon the mistaken plea that I initially raised out of panic in order to resist the plaintiffs suit and admit that the averment made in the plaint is true. Of course he cannot do so if as a result of the stand taken by him the other side has altered his position to his prejudice. If he could have taken this posture in the lower Court there is no reason why he cannot assume the same posture in this Court. (As I pointed out earlier the suit waS dismissed in the trial Court). I therefore cannot accede to the submission urged on behalf of counsel for the respondent that the appellant should be prevented from urging that the document in question created a mortgage and not a sale. Once this conclusion is reached the only question that remains is as regards physical possession for the plaintiff would of course be entitled to a decree for redemption. This question is of great importance from the point of view of the appellant who claims to be a tenant from as early as 1942 and who is admittedly in possession of the lands even now. The question is of great magnitude from his point of view because he is exposed to the risk of being parted from the land which he has been tilling for all these years. The relationship between the land and the actual tiller who nurses the land with his own sweat is akin to the relationship between a mother and a child. This question of possession therefore requires to be examined with a great degree of care and anxiety. Now there are several reasons why the plaintiff cannot obtain physical possession of the land even though he may be entitled to obtain a preliminary decree for redemption. These reasons will become evident in the course of the discussion. The main argument on the part of the counsel for the respondent-plaintiff is that the doctrine of merger is attracted and the defendant must be deemed to have impliedly surrendered his tenancy even assuming that he was a sitting tenant on the date of the transaction creating a mortgage in his favour. Before I proceed to deal with this argument it is necessary to dispose of a half-hearted plea raised to the effect that there was no clear finding that the appellant-defendant was a sitting tenant as claimed by him. When however it was pointed out that there was an admission to this effect in a notice addressed by his predecessor-in-title to the appellant counsel could not press the point any further. The said admission is contained in Ex. 42 dated January 14 1967 which is a registered notice addressed by the heirs of Vadilal speaking through the Karta of the family Jawaharlal from whom the respondent-plaintiff derived his title under Ex. 27. In paragraph 2 it has been clearly mentioned that appellant-defendant Patel Atmaram Nathudas was a sitting tenant on the land from before the document of mortgage by conditional sale created by the original owners on March 14 1947 There is a further recital to the effect that Vadilal required the appellant Atmaram to hand over possession but that the latter realised to do so. This clearly establishes that the claim of the appellant that he was a sitting tenant is true. What is more the appellant has given evidence on oath to this effect and not one single question has been put to him under cross-examination in order to challenge the veracity of the statement. What is still worse plaintiff Babulal who is the owner of an adjoining land in his evidence does not make bold to state that someone else was in possession of these lands. If the appellant was not in possession and someone else was plaintiff Babulal would have very well known about it being a person who was tilling the neighbouring field and could have stated as to who was in possession. It is nobodys case that any one else was in possession If the appellant-defendant had come into possession later on the other side would have shown how and when he was inducted on the lands. The lower appellate Court was therefore right in observing that the claim of the appellant that he was a sitting tenant from before the first transaction recorded in 1947 is true. Having disposed of this incidental point by way of this digression we may return to the original point and pick up the threads of the argument advanced by counsel for the respondent-plaintiff in support of the contention that the appellant is not entitled to remain in possession notwithstanding the fact the he was a sitting tenant from before the date of the creation of the mortgage in 1947. It is argued that the doctrine of merger would be attracted and as soon as the tenant advanced monies he would be deemed to have surrendered his tenancy by implied surrender having regard to the fact that his status as a tenant is inconsistent and incompatible with his new status as a mortgagee in possession. Reliance was placed in this connection on Sardarilal v. Ramlal and others A. I. R. 1962 Punjab 48 and on Meenakshi Amma v. Kizhakke Valath Narayeni and others A. I. R. 1957 Madras 212 in which the learned single Judge preferred and followed a decision rendered by the Travancore Cochin High Court in Velu v. Lekshmi and others A. I. R. 1953 Travancore-Cochin 584 and refused to follow a judgment of the Allahabad High Court reported in Kalu v. Diwan I. L. R. 24 Allahabad 427. In my opinion the view taken by the Allahabad High Court saying so with respect is the correct view and must be preferred to the view taken by the Madras Punjab and the Travancore-Cohin High Courts. The Allahabad High Court has consistently taken the view that there would be no merger by implied surrender. The latest decision by the Allahabad High Court on this point is the one rendered in Lachman Das and others v. Heera Lal A.I.R. 1966 Allahabad 323 Dwivedi J of the Allahabad High Court as he then was speaking for the Division Bench has taken the view that the tenancy would remain in abeyance and the doctrine of surrender would not be attracted on the reasoning reflected in the following passage:-

There is no inconsistency or incompatibility in one person being the lessee and usufructuary mortgagee of the same property at the same time for his obligations as a lessee would remain suspended during the subsistence of the mortgage. The principle of suspension is discussed in Burtons case. (1831) 7 Bing 745. We have already stated the facts of the case. There Tindal C. J. said:-

Suspension which is a partial extinguishment takes place only where the rent or other profit a prendre issuing out of the land comes to him who has possession of the same land for a time only.

The rent sought to be recovered in this action is that which is reserved under Meeks under-lease; and if either Bates or Langden had purchased the term granted by Meeks under-lease the rent in that case would have been suspended during the continuance of such under-lease for in that case there would have been a union of the rent and of the land itself in the same period. So if this action had been brought for the rent reserved under Bate s lease there might have been a question whether his rent was not suspended until the term granted by him to Langden had ceased;........(1831) 7 Bing 745 at p. 759

As a result of the foregoing discussion we have come to the conclusion that sec. Ill(d) did not apply to the facts of this case and that accordingly the tenancy of the defendants did not cease on their taking a usufructuary mortgage of the shop.

We shall now discuss the cases cited before us. In Kallu v. Diwan (1902) ILR 24 All 487 the defendant was a non -occupancy tenant of some agricultural plots. He took a usufructuary mortgage of the plots from the landlord. In the suit for redemption the plaintiff contended that the tenancy was merged in the mortgage and that he should get actual possession over the plots. The lower appellate court accepted his contention and granted a decree for actual possession. Blair and Aikman. JJ. disagreed with the lower court and held that the tenancy did not merge in the mortgage. Blair J. said:-

In our opinion the effect of the mortgage was not to destroy the tenancy but only to suspend the obligation of the tenancy to pay rent to the landlord while the mortgage subsisted. (1902) ILR 24 All 487 at p. 490.

Aikman J. said

The effect of the mortgage was to suspend for the time being the relationship of landholder and tenant between the parties. When the mortgage is redeemed the parties are relegated to the position which they occupied immediately before the mortgage was executed (1902) ILR Z4 All 487 at p. 492.

In my opinion there is yet another line of reasoning on which the same conclusion can be reached. Surrender is an overt conscious and deliberate act of a tenant. The concept of implied surrender by fiction attributes to the tenant the decision to surrender though he has not expressly done so. Now it stands to commonsense that no one would do something to his own detriment or prejudice. The tenant when he acquires the right as a mortgagee is enlarging his interest and bettering his position. By advancing the money he is not trying to alter his position to his prejudice or trying to worsen his condition. Now it is not inconceivable that within month of creating the mortgage the mortgagor may redeem the property. If one were not to attribute to the tenant (by resort to commonsense) the good sense to protect his own interest and to preserve his interest as a tenant but were to ascribe to him the sophisticated legalistic doctrine of merger about which he can scarcely have any knowledge out would he go. Could such an intention be ever attributed to a tenant The Courts of equity have evolved a principle based on the presumption against merger if it is against ones interest (See Ingle v. Vaughan Jenkins (1900) 2 Chancery Division 368). It therefore stands to reason to hold that unless the tenant deliberately and with design wants to cut the very branch on which he is sitting he cannot be attributed the intention to commit suicide by entertaining the desire to determine his tenancy particularly when all that he does is to do a good turn by advancing some monies to the landlord by way of mortgage. There is no question of inconsistency or incompatibility of status in such a case. All that has happened is that instead of paying the rent to the landlord he adjusts the rent against the amount climbable by him by way of interest from the landlord. It only results in a notional adjustment entry under the different heads. It would be unreasonable to attribute to a tenant the intention to surrender the tenancy and to invoke the sophisticated doctrine of implied surrender which doctrine does not originate in his own mind) when the unsophisticated and ignorant (often illiterate) tenant knows nothing about it. The poor tenant himself does absolutely nothing and is unaware of even the existence of such a doctrine. Shall we even so ascribe to him such a intention by some hyper-refined involved reasoning or legal erudition is under the circumstances not possible to agree that the tenant forfeits his right to continue as a tenant by reason of the determination of his tenancy upon the creation of a mortgage in his favour. This would be the suit even if the tenant had acquired the status of a mortgagee from the owners of the lands. In the present case the appellant-tenant was a sitting tenant when the owners of the lands created a mortgage in favour of Vadilal. Vadilal being the mortgagee there was no queston of merger. The appellant continued to retain his status as a tenant. By reason of the next transaction which took place about three months later Vadilal created a sub-mortgage in favour of the appellant under Ex. 25 (I have already discussed the aspect relating to the true effect of Ex. 25 in the earlier portion of my judgment and have formed the opinion that it creates a mortgage). Since the appellant was only a sub-mortgagee claiming through Vadilal-the mortgagee there was no question of merger of two interests. On one hand he continues to be the tenant of the original owners (mortgagors) and on the other hand he became a submortgagee claiming title through Vadilal in whose favour the original owners had created the mortgage. Notwithstanding the mortgage in favour of Vadilal the appellant continued to be the tenant of the original owners. No question of merger can at all arise merely by reason of the fact that subsequently he became a sub-mortgagee. In any view of the matter therefore there is no substance in the contention that a merger by implied surrender has taken place and that the appellant-tenant has forfeited his right to continue as a tenant. In the result notwithstanding the decree for redemption the respondent-plaintiff would not be entitled to claim physical possession from the appellant-tenant.

(5) In the view that I am taking it is not necessary for me to pronounce my final opinion on the other contentions urged by the appellant on the basis of sec. 25A of the Bombay Tenancy and Agricultural Lands Act. It was argued that this section which was enacted in 1951 after the mortgage in favour of Vadilal was created would extend its protection to the appellant-tenant as well. On the other hand it was argued by learned counsel for the respondent-plaintiff that the said section cannot have retrospective effect and that in the merger took place in 1947 under the doctrine of implied surrender the protection of sec. 25A would not avail to the appellant-tenant. In my opinion what sec. 25A does is merely to declare the existing law. And for the reasons articulated a moment ago I am of the opinion that such an implied surrender does not take place merely because a tenant becomes a mortgagee. In this view of the matter sec. 25A would also extend its protection to the appellant and render him immune from being physically evicted. There is also considerable substance in the contention of the appellant-tenant that having regard to sec. 4 of the Tenancy Act the appellant is entitled to claim the status of a deemed tenant even assuming that he has acquired the status of a mortgagee in possession. It is argued that no question of merger can arise because the appellant was tilling the lands lawfully and would be entitled to claim the status of a deemed tenant. It was also argued that the appellate-tenant was entitled to claim the status of a protected tenant under the repealed Tenancy Act namely the Bombay Tenancy Act of 1939. This also appears to be an attractive and impressive argument but I need not dwell on this aspect since the appellant is entitled to succeed having regard to the view taken by me on the question of merger.

(6) The result is that the appeal partly succeeds. The decree passed by the lower appellate Court must be substituted by a decree for redemption on the respondent-plaintiff depositing Rs. 2500/as per the terms of document Ex. 25 dated May 29 1947 within six months of the drawing of the decree or within such further time as may be extended from time to time by the trial Court. A preliminary decree in the usual form in the aforesaid terms will follow. It will however be made clear in the said decree that the respondent-plaintiff will not be entitled to physical possession and that he will be only entitled to a symbolic possession. Having regard to the facts and circumstances of the case there will be no order regarding costs throughout.

(7) Counsel for the respondent applies for certificate of fitness to file a Letters Patent Appeal. Certificate is refused as I do not consider it a fit case for certificate. Appeal partly allowed.