Mahabir Gope & Ors Vs. Harbans
Narain Singh & Ors [1952] INSC 22 (14 April 1952)
AIYAR, N. CHANDRASEKHARA MAHAJAN, MEHR CHAND
BOSE, VIVIAN
CITATION: 1952 AIR 205 1952 SCR 775
CITATOR INFO :
A 1956 SC 305 (11) R 1958 SC 183 (7,10,14) E
1966 SC1721 (9) D 1968 SC1466 (7) R 1972 SC 637 (4) R 1980 SC 696 (10,11) RF
1981 SC1881 (17) RF 1981 SC2146 (8,11,14) RF 1988 SC 299 (8) RF 1989 SC 436
(38,42)
ACT:
Bihar Tenancy Act, 1937, ss. 5 (2), 20,
21--Zuripeshgi leaseLease by mortgagee for a term of 3 years--Lessee continuing
in possession for over 30 years--Whether acquires occupancy rights-Construction
of lease--Mortgagee's power to lease--Limitations-Transfer of Property Act, (IV
of 1882), s. 76 (a) and (e).
HEADNOTE:
As a general rule a person cannot transfer or
otherwise confer a better title on another than he himself has and a mortgagee
cannot therefore create an interest in mortgaged property which will enure
beyond the termination of his interest as mortgagee. Further, a mortgagee
cannot during the subsistence of the mortgage act in a manner detrimental to
the mortgagor's interests, such as by giving a lease which may enable the
tenant to acquire permanent occupancy rights in the land, thereby defeating the
mortgagor's right to khas possession.
A permissible settlement by a mortgagee in
possession with a tenant in the course of prudent management and the springing
up of rights in the tenant conferred or created by statute based on the nature
of the land and possession for the requisite period is an exception to the
general rule, but to fall within this exception the settlement of the tenant by
the mortgagee must have been a bona fide one.
The exception will not apply in a case where
the terms of the mortgage prohibit the mortgagee from making any settlement of
tenants on the land either expressly or by necessary implication.
Where a zuripeshgi ijara deed contained the
following clause: "It is desired that the ijaradars should enter into
possession and occupation of the share let out in ijara (being the kkudkasht
land under his own cultivation), cultivate them, pay 2 as. as reserved rent
year after year to us, the executants, and appropriate the produce thereof year
after year on account of his having the ijara interest" and the kabuliat
executed by the tenant to whom the lands were leased by the mortgagee for a
period of 3 years referred to the ijara deed and contained an express provision
that he (the tenant) would give up possession of the tika land on the expiry of
the lease without urging any claim on the score that the lands were his kasht
lands: Held, confirming the decision of the High Court, that the settlement was
not a bona fide one and the successors of the tenant (the defendants) did not
acquire permanent rights of occupancy in 101 776 the demised lands under the
Bihar Tenancy Act even though the lands had been in the occupation of the
tenant and his successors for over 30 years after the expiry of the lease.
Held further, that the defendants could not
acquire occupancy rights under sections 20 and 21 of the Bihar Tenancy Act as
the mortgagee was neither a "proprietor" nor a
"tenure-holder" or "under-tenure-holder" and the tenant and
his successors were not, therefore, "settled raiyats" within the meaning
of section 5, cl. (2), of the said Act.
Manjhil-Lal Biswanath Shah Deo. v. Shaikh
Mohiuddin (I.L.R. 24 Cal. 272). Babu Bairo Nath Ray v.Shanke Pahan (I.L.R. 8
Pat. 31) and Binda Lal Pakrashi and Others v. Kalu Pramanik and Others (I.L.R.
20 Cal. 708) distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 143 of 1951. Appeal by special leave from the judgment and decree dated
23rd March,-1950, of the High Court of Judicature at Patna (Reuben and Jamuar
JJ.) in appeal from Original Decree No. 206 of 1946 arising out of a decree
dated 31st January, 1946, of the Subordinate Judge at Patna in Title Suit No. 55/4
of 1943-45.
Saiyid Murtaza Fazl Ali for the appellants.
N.C. Chatterjee (A. N. Sinha, with him)for
the respondents Nos. 1 to 9.
B.K. Saran for the respondents Nos. 11 to 16.
1952. April 14. The Judgment of the Court was
delivered by CHANDRASEKHARA AIYAR J.--This is an appeal by the defendants from
a decree of the Patna High Court reversing a decree of the Subordinate Judge's
Court at Patna, and decreeing the plaintiffs' suit for possession against the
defendant first party who may be called for the sake of convenience as 'the
Gopes'.
The lands were khudkhasht lands, partly
belonging to the plaintiffs first party and partly belonging to Mussammat Anaro
Kuer, from whom the plaintiffs second and third parties trace title. The
ancestors of plaintiffs first party gave on 28-9-1899 an ijara with possession
to one Lakhandeo Singh an ancestor of the defendant second party under Exhibit
I (b) for a term 777 of six years from 1307 Fasli to 1312 Fasli for Rs. 540.
The poshgi money was to be repaid in one lump sum at the end of Fasli 1312. If
there was no redemption then the ijara was to continue in force till the money
was repaid. Mussammat Anaro Kuer gave her share in ijara to the same Lakhandeo
Singh orally on 10th June, 1905, for a period of three years for Rs. 542.
Lakhandeo Singh, who is represented now by the defendant second party, made a
settlement of the land thus got by him (8.26 acres or 13 bighas in all) with
one Ram Lal Gope an ancestor of the defendant first party for a period of three
years from Fasli 1315 to Fasli 1318. There was a patta in-favour of the tenant
and a kabuliyat in favour of the landlord. This was in 1908. The mortgage was
redeemed in June 1942 by payment in proceedings under section 83 of the
Transfer of Property Act, When the plaintiffs went to take possession, they
were resisted by the Gopes (defendant first party), and after unsuccessful
criminal proceedings, the plaintiffs filed the present suit. The Subordinate
Judge dismissed it, holding that the Gopes were raiyats having acquired
permanent occupancy rights in the lands as the result of the settlement by the
mortgagee, Lakhandeo Singh. On appeal the High Court set aside this decision
and gave the plaintiffs a decree for possession on the finding that the
defendants were not raiyats and had no permanent rights of occupancy. This
court granted to the defendants special leave to appeal.
The suit was in the alternative for recovery
of the value of the lands as compensation or damages from the defendant second
party in case it was found that the defendant first party could not be ejected.
The trial court decreed this alternative claim and awarded to the plaintiffs
compensation at the rate of Rs. 200 per bigha. The defendant second party
carried the matter in appeal to the High Court and succeeded. But we have
nothing to do with this matter in the present appeal.
At the trial, the plaintiffs alleged and
maintained that the lands were their zirat lands within the meaning SUPREME 778
of section 116 of the Bihar Tenancy Act and that the defendant first party
could acquire no rights of occupancy in the same. The Subordinate Judge found
against this contention and held that they were khud kasht or bakasht lands of
the proprietor, in which rights of occupancy can be acquired He negatived the
plea of the defendants that they were their ancestral raiyati lands. He also
held that there was no collusion between the mortgagee Lakhandeo Singh and Ram
Lal Gope in the matter of settlement of lands. It is on the basis of these
findings which were accepted by both the parties that the hearing of the appeal
proceeded before the High Court.
It was held by the Privy Council in Bengal
Indigo Company v. Roghobur Das(1) that "a zuripeshgi lease is not a mere
contract for the cultivation of the land at a rent, but is a security to the
tenant for the money advanced". They observed, speaking of the leases
before them, that "the leases in question were not mere contracts for the
cultivation of the land let; but that they were also intended to constitute,
and did constitute, a real and valid security to the tenant for the principal
sums which he had advanced, and interest thereon. The tenants' possession under
them was, in part at least, not that of cultivators only, but that of creditors
operating repayment of the debt due to them, by means of their security."
These words apply to the ijara deed before us; its dominant intention was to
provide a security for the loan advanced and not to bring into existence any
relationship of landlord and tenant.The general rule is that a person cannot by
transfer or otherwise confer a better title on another than he himself has. A
mortgagee cannot, therefore, create an interest in the mortgaged property which
will enure beyond the termination of his interest as mortgagee. Further, the
mortgagee, who takes possession of the mortgaged property, must manage it as a
person of ordinary prudence would manage it if it were his own; and he must not
commit any act which is destructive (1) (1897) 24 Cal. 272.
779 or permanently injurious to the property;
see section 76, sub-clauses (a) & (e)of the Transfer of Property Act. It
follows that he may grant leases not extending beyond the period of the
mortgage; any leases granted by him must come to an end at redemption. A
mortgagee cannot during the subsistence of the mortgage act in a manner
detrimental to the mortgagor's interests such as by giving a lease which may
enable the tenant to acquire permanent or occupancy rights in the land thereby
defeating the mortgagor's right to khas possession; it would be an act which
would fall within the provisions of section 76, subclause (e), of the Transfer
of Property Act.
A permissible settlement by a mortgagee in
possession with a tenant in the course of prudent management and the springing
up of rights in the tenant conferred or created by statute based on the nature
of the land and possession for the requisite period is a different matter
altogether. It is an exception to the general rule. The tenant cannot be
ejected by the mortgagor even after the redemption of the mortgage. He may
become an occupancy raiyat in some cases and a non-occupancy raiyat in other
cases. But the settlement of the tenant by the mortgagee must have been a bona
fide one. This exception will not apply in a case where the terms of the
mortgage prohibit the mortgagee from making any settlement of tenants on the
land either expressly or by necessary implication.
Where all the zamindari rights are given to
the mortgagee, it may be possible to infer on the proper construction of the
document that he can settle lands with tenants in the ordinary course of
management and the tenants might acquire certain rights in the land in their
capacity as tenants. In the case of Manjhil-Lal Biswa Nath Shah Deo v. Shaikh
Mohiuddin(1), there was a bona fide settlement of mortgaged rayati land by the
mortgagee with tenants and it was held that the mortgagor was not entitled to
evict them after redemption. The earlier decision of Babu Bhairo Nath Ray v.
Shanke Pahan(2), related to bakasht lands,
and (1) (1927) 8 Pat. L.T. 92. (2) (1929) I.L.R. 8 Pat.31.
780 there was no provision in the zuripeshgi
lease restricting the power of the mortgagee lessee as regards settlement of
tenants. Khudkasht lands and bakasht lands are really in the nature of raiyati
lands which come into the possession of the proprietor by surrender,
abandonment or purchase.
In the present case. we have the following
clause in the ijara deed: "It is desired that the ijaradar should enter
into possession and occupation of the share let out in ijara (being the
khudkasht land under his own cultivation), cultivate them, pay 2 annas as
reserved rent year after year to us, the executants, and appropriate the
produce thereof year after year on account of his having the ijaradari
interest." This term disentitles the mortgagee from locating tenants on
the land mortgaged. Ram Lal Gope, the grandfather of the defendants first
party, who executed the kabuliat in 1908 must have known of the title of
Lakhandeo Singh the mortgagee and the terms under which he held the lands under
the registered zuripeshgi ijara deed and this is most probably why the tenant
not only took the lease for a period of 3 years, but expressly undertook to
give up possession over the thika lands on the expiry of the period of lease
without urging any claim on the score that the lands were his old kasht lands.
His kabuliat (Exhibit 11) in fact refers to Lakhandeo Singh's ijaradari
interest. In view of these facts, the learned Judges of the High Court stated
that they were not prepared to hold that the settlement was a bona fide one or
the mortgagee was within his rights in settling these lands.
Strong reliance was placed for the appellants
on the Full Bench decision Binad Lal Pakrashi and Others v. Kalu Pramanik and
Others (1) where it was held that a person inducted into possession of land as
a raiyat even by a trespasser became a non-occupancy raiyat within the meaning
of section 5, sub-section, 2 of the Bengal Tenancy Act and was protected from
ejectment. But this decision has been subsequently (1) (1893) I.L.R. 20 Cal.
708.
781 explained away in several cases as based
on the proposition that the rights must have been bona fide acquired by them
from one whom they bona fide believed to' have the right to let them into
possession of the land. Such, however, is not the case here, in view of the
recitals in the ijara deed in favour of Lakhandeo Singh and the kabuliat by Ram
Lal Gope.
Sections 20 and 21 of the Bihar Tenancy Act
were referred to by the learned counsel for the appellants in the course of his
arguments and he pointed out that the land in this case was held' continuously
by his clients and their predecessors from 1908 to 1942, when they were sought
to be ejected. For these sections to apply, we must be in a position to hold
that the appellants were "settled raiyats". "Raiyals" is
defined in sub-clause 2 of section 5 as meaning "primarily a person who
has acquired a right to hold land for the purpose of cultivating it by himself
or by members of his family ...... " Sub-clause 3 provides that a person
shall not be deemed to be a raiyat unless he holds land either immediately under
a proprietor or immediately under a tenure-holder. Lakhandeo Singh was not a
"proprietor" by which term is meant a person owning, whether in trust
or for his own benefit, an estate or part of an estate: he was only a
mortgagee. Nor was he a tenure-holder or under-tenureholder, as he does not
comply with the definition given in sub-clause (1) of section 5, namely, a
person who had acquired from a proprietor or from another tenure-holder a right
to hold land for the purpose of collecting rents, or for the purpose of
bringing the land under cultivation by establishing tenants on it. Such proof
as there is in this case only goes to show that the lands were under the
cultivation of the plaintiffs and that they were made over to the possession of
the mortgagee so that he might cultivate them himself. Hence, Ram Lal Gope
could not claim that he was a settled raiyat of the village and that under the
statute he secured occupancy rights in the lands Which he took on lease from
Lakhandeo Singh.
782 Lastly, it was urged that the ijara by
Mst. Anaro Kuer was admittedly an oral transaction and there was no proof of
any prohibition against the settlement with tenants so far as her share (3.97
acres) was concerned and that the rights of the parties as regards this area
would stand on a different footing from the rights in respect of the 4 acres
and 29 cents belonging to the plaintiff first party. This point was not taken
in the courts below where the two ijaras given to Lakhandeo Singh were dealt
with as if they were part and parcel of one and the same transaction, the
rights and liabilities, whatever they were, being common to both. We cannot
allow the point to be taken now.
The result is that the High Court's decree is
confirmed and the appeal is dismissed with costs of the plaintiffs respondents.
There will be no order as to costs of the other respondents.
Appeal dismissed.
Agent for the appellants: S.P. Varma.
Agent for the respondents Nos. 1 to 9: M.M.
Sinha.
Agent for the respondents Nos. 11 to 16: K.L.
Mehta.
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