Pratap Chand Vs. Ram Narayan & ANR
[1961] INSC 63 (22 February 1961)
ACT:
Mortgage-Entire proprietary rights
mortgaged-Sir lands -not mentioned-If included in the mortgage-Other lands of
the mortgagor coming into mortgagee's possession, if accession to the mortgage
-Transfer of Property Act, 1882 (4 of 1882), S. 70.
HEADNOTE:
One Ramchandar executed a simple mortgage
deed without possession of his share in the property in dispute in favour of
the respondents and others the relevant Portion of which ran thus :" I do
hereby mortgage without possession half share, five annas and four pies, area
678-31 acres, jama sarkar Rs. 326/10/8 together with Khudkashat, chbotaghas,
big shrubs, abadi, gair abadi, cultivated and that lying vacant, and the rights
and privileges appertaining to water, forests, chahat, gardens, and right of
cultivation, malguzari and trees of every kind whether giving fruits or no
fruits and prohibited and un-prohibited wood with entire rights and privileges
appertaining to the 'village." After the mortgage Ramchandar's share was
sold to the appellants and certain other lands recorded in Ramchandar's
mother's name also came into the possession of the appellant.
The main questions arising for decision were
whether the mortgage included the sir land of Ramchandar and whether the other
lands coming into the possession of the appellant were accession to the
mortgage.
Held, that as the mortgage deed stood it was
a mortgage of all the proprietary rights in the mortgagor's share in the
property including the proprietary right in the sir pertaining to that share.
As the mortgage was without possession the
mortgagor was not losing possession of his sir and it was not necessary for him
to make an application under s. 50 of the Central Provinces Tenancy Act
relating to the reservation of a right of occupancy. Sections 49 and 50 come
into play when the proprietor making a transfer loses his right to occupy any
portion of his sir land temporarily or permanently.
Although in the plaint of the suit-based on
the mortgage no mention was made of sir, the entire proprietary right in sir,
khudkashat etc. relating to the mortgagor's share would be sold on a decree
passed in the suit.
The words " all rights pertaining to the
share " appearing in the sale certificate following the execution of the
decree in the mortgage suit passed in favour of the respondents would include
the mortgagor's proprietary rights in the sir land and the respondents by their
sale certificate would get a right 'in the sir land also.
914 As the appellant had purchased the entire
share of Ram- chandar who was later ejected from his ex-proprietary tenancy
which came into the possession of the appellant as lambardar his sir land which
thus came into the appellant's possession while the mortgage was subsisting
became an accession to the mortgage under s. 70 Of the Transfer of Property Act
and the mortgagees were entitled to half share in the lands which came into the
appellant's possession.
The lands recorded nominally in the name of
Ramchandar's mother but in the actual possession of the former having also came
into the possession of the appellant as lambardar were held by him for the
entire body of proprietors and the respondent would be entitled to a share in
them. The respondent's claim to those lands were not barred by 0. II, r. 2 of
the Code of Civil Procedure merely because they were not mentioned in the
plaint of the mortgage suit.
Hazarilal v. Hazarimal, A.I.R. 1923 Nag. 130
and Seth Manakchand v. Chaube Manohar Lal, A. I.R. 1944 P.C. 46, held not
applicable.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 272 of 1956.
Appeal from the judgment and decree dated
June 28, 1954, of the former Nagpur High Court, in First Appeal No. 107 of
1946.
M. C. Setalvad, Attorney-General for India,
Purshottam Trikamdas, S. T. Khirwadkar and I. N. Shroff for the appellant.
Achhru Ram, A. R. Chaubey and Naunit Lal for
the respondents.
1961. February 22. The Judgment of the Court
was delivered by WANCHOO, J.-This is an appeal on a certificate granted by the
Nagpur High Court. The brief facts necessary for present purposes are these.
One Ramchandar Jat originally owned Annas -10/8 share in Mauza Tamalawadi while
the rest belonged to others. Ramchandar executed a simple mortgage deed on July
27, 1920, in favour of Seth Ram Jiwan and two.
minors Ram Narain and Radhey Sham. The
plaintiffs.
respondents are the representatives of the
mortgagees. On August 27, 1926, the defendant-appellant -purchased Annas -/5/4
share belonging to the other share holders in the village. Thereafter, the
appellant brought a 915 suit against Ramchandar who was lambardar of the village
for profits, in which 9, decree was passed against Ramchandar.
In execution of that decree the appellant
purchased the entire Annas -/10/8 share of Ramchandar in the village about the
year 1932. In consequence, the appellant became the owner of the entire village
subject to the mortgage of the respondents on Annas -/5/4 share therein. On
July 27, 1932, the respondents sued Ramchandar on the basis of their
mortgage-deed and a preliminary decree for sale was passed in March, 1937. To
this suit the appellant was also a party. The preliminary decree was followed
by a final decree and thereafter the property was put to sale and was purchased
by the respondents on March 1, 1940. This sale was confirmed on April 12, 1940,
and a sale certificate was granted to the respondents. So by the year 1940 the
respondents were the owners of Annas -/5/4 share in the village while the
appellant was the owner of Annas -/10/8 share. The appellant was also a
lambardar.
Ramchandar Jat held sir land in certain
khasras with a total area of 252-49 acres. On the sale of Ramchandar's share to
the appellant, Ramchandar became an ex-proprietary tenant of his sir land.
Thereafter Ramchandar was ejected from his exproprietary tenancy sometime in
1936 and the lands came into possession of the appellant. There were certain
other lands which were nominally recorded as Muafi Khairati in the name of
Ramchandar's mother but were actually in the possession of Ramchandar. It
appears that Ramchandar was ejected from these lands also and they came into,
the possession of the appellant. Further the appellant as a lambardar came into
possession of certain other lands by surrender or otherwise.
The respondents filed a suit for partition
before the Sub- Divisional Officer, Hard&, in 1942. In that suit they
claimed half share in the lands of Ramchandar and his mother which came into.
the possession of the appellant. They also claimed a share in other lands which
came into-the possession of the appellant as lambardar. Their case was that
these lands were 916 accession to the mortgage in their favour and they were -
therefore entitled to a proper share in them'. This claim was resisted by the
appellant before the Sub-Divisional Officer. On October 20, 1943, the
Sub-Divisional Officer passed an order which in effect rejected the contention
of the respondents and accepted the plea of the appellant.
Thereupon the respondents filed the present
suit for a declaration in the civil court in 1944 claiming that they were
entitled to a proportionate share in the lands specified in the plaint. The
suit was resisted by the appellant and his contention was that the respondents
had purchased specific khudkashat and chhotaghas plots and that they therefore
could not be allowed anything more than what was mentioned in the decree and
the sale certificate which were the basis of their title. As the specific lands
with respect to which the respondents claimed a declaration in this suit were
not mentioned in the sale certificate, they were not entitled to any share in
them. A large number of issues were framed by the trial court, which decreed a
part of the claim put forward by the respondents but dismissed the rest.
Consequently, the respondents went up in appeal to the High Court. The appeal
was allowed so far as the respondents' claim to one-half share in the sir plots
held by Ramchandar was concerned. Further, they were allowed one-third share in
the lands held by the mother of Ramchandar and also in certain other lands
which came into the possession of the appellant as lambardar subject to payment
of certain amounts. This was followed by an application by the appellant for
leave to appeal to this Court and a certificate was granted by the High Court.
That is how the matter has come up before us.
The main contention of the appellant before
us is that the mortgage deed of 1920 -which is the basis of the title of the
respondents did not include the sir plots in the possession of, Ramchandar nor
the plots of Ramchandar's mother. Nor were these plots included in the suit which
was brought by the respondents on the basis of the mortgage- deed. Further, the
sale certificate also did not include these plots, though 917 some other plots
were mentioned therein. Therefore, the respondents were not entitled to these
plots as accession to the mortgage.
This brings us to a consideration of the
mortgage in favour of the respondents. The mortgage was without possession and
the property mortgaged was mentioned in these terms:
" I do hereby mortgage without
possession half share -/5/4, five annas and four pies, area 678.31 acres,
jama-sarkar Rs. 326/10/8 together with khudkashat, chhotaghas, big shrubs,
abadi, gair abadi, cultivated and that lying vacant, and the rights and
privileges appertaining to water, forests, chahat, gardens, and right of
cultivation, malguzari and trees of every kind whether giving fruits or no
fruits and prohibited and unprohibited wood with entire rights and prvileges
appertaining to the village." It will be seen that what was mortgaged was
the entire half share of Ramchandar in -/10/8 share which he owned in the
village. It is true that the mortgage goes on to describe certain other things
but that in our opinion is merely by way of precaution, for even if the part
underlined* was not there in the mortgage, the respondents being the mortgagees
of -/5/4 share would be entitled to everything contained in that share. The
underlined* part of the mortgage therefore does not cut down the amplitude of
the mortgage with respect to the entire -/5/4 share out of -/10/8 share of
Ramchandar.
It is true that sir is not specifically
mentioned in the mortgage but as the mortgage was of the entire -/5/4 share out
of -/10/8 share it will include (unless there is a specific exclusion of sir)
the area of sir also pertaining to the share mortgaged. In this connection our
attention was drawn to as. 68 and 69 of the Central Provinces Land Revenue Act,
No. 11 of 1917, which was in force at the relevant time. Section 68 deals with
sir land and s. 69 wit khudkashat. Sir is defined in s. 2 (17) and khudkashat
is defined in s. 2 (5) as " that part of the home-farm of a mahal which is
cultivated by the -proprietor as such and which is not sir land. " Thus
though sir land may be a part of the home-farm it is a different entity Here printed
in italics.
918 from khudkashat land. Reference was also
made to ss. 49 and 50 of the Central Provinces Tenancy Act, No. 1 of 1920
(hereinafter called the Tenancy Act) which deal with transfer of sir land.
Under s. 49 (1) a proprietor who temporarily or permanently loses whether under
a decree or order of a civil court or by transfer or otherwise his right to
occupy any portion of his sir land as a proprietor shall at the date of such
loss, become an occupancy. tenant except where he has obtained a sanction under
s. 50 of the Tenancy Act. Further under s. 49 (2) there is a prohibition on the
registration of documents which purport to transfer all the rights of a
proprietor in big sir land without reservation of the right of tenancy
specified in sub-s. (1). It is urged for the appellant that the reason why sir
land was not mentioned in the mortgage deed of 1920 was that otherwise sanction
of the Revenue Officer would have been required under s. 50 of the Tenancy Act.
Now s. 50 provides that if a proprietor desires to transfer the proprietary
rights in any part of his sir without reservation of a right of occupancy
specified in s. 49(1) he may apply to the Revenue Officer and if such Revenue
Officer is satisfied that the transferor is not wholly or mainly an agriculturist
or that the property is self-acquired or has been -acquired within the twenty
years last preceding, he shall sanction the transfer. Sections 49 and 50 in our
opinion only come into play when the proprietor making a transfer loses his
right to occupy any portion of his sir land temporarily or permanently and
sanction has to be obtained under s. 50 only where the transfer is to be made
without reservation of the right of occupancy. But the mortgage in this case is
a simple mortgage and there was no transfer of possession under it. Therefore
the proprietor Ramchandar never lost his right to occupy his sir land by this
mortgage and there was therefore no necessity for him to make any reservation
in that respect or to apply for sanction under s. 50, for he was not losing the
right to occupy his sir at all. But that does not mean that when he mortgaged
his entire share of -/5/4 out of -/10/8 share,, he was excluding from the
mortgage the area of sir 919 corresponding to the share mortgaged. As the
mortgage deed of 1920 stands, it is a mortgage of all the proprietary rights in
-/5/4 share including the proprietary right in the sir pertaining to that share
; but as the proprietor was not losing his right to occupy the sir land, the
mortgage being without possession, it was not necessary for him to make any
application under s. 50 of the Tenancy Act. We are therefore of opinion that
the appellant cannot take advantage in the circumstances of the fact that no
application was made under s. 50 of the Tenancy Act and therefore there was no
effect of this mortgage on the sir rights. As we read the mortagage it clearly
affected the sir Tight also pertaining to -/5/4 share and it was not necessary
to make an application under s. 50 of the Tenancy Act, for the mortgagor was
not losing possession of his sir and there would be no question of any
ex-proprietary tenancy arising in his favour, to relinquish which he would have
to apply under s. 50.
Turning now to the plaint in the mortgage
suit we find that the property subject to the mortgage is mentioned in para. 2
thereof inexactly the same terms as in the mortgage deed.
In para. 13 it is again recited that the
mortgagor mortgaged -/5/4 share out of his -/10/8 share. Paragraph 13 then goes
on to say that on the date of the mortgage, the mortgagor had certain
khudkashat and chhotaghas lands and both cultivating and proprietary rights in
them pertaining to half share only were liable to be sold. No mention was made
of sir in this paragraph. But that in our opinion was not necessary, for the
mortgage included the mortgage of sir land also pertaining to -/5/4 share
though without possession. The prayer in the suit was for sale of the mortgaged
property together with khudkashat, etc.; but this again was a mere matter of
precaution, for in any case the entire proprietary right in sir, khudkashat,
etc., relating to -/5/4 share would be sold on a decree following on the
mortgage.
Then coming to the sale certificate we find
that it certifies that the respondents had purchased -/5/4 share in the village
with abadi, khudkashat, chhotaghas and all rights pertaining to the 'share. It
is true that 920 khudkashat and chhotaghas are specifically mentioned in the
sale certificate but the words " all rights pertaining to the share "
appearing in the sale certificate would include such proprietary rights in the
sir land as belonged to the share mentioned in the sale certificate. We are,
therefore, of opinion. that so far as sir land is concerned, the proprietary
right in it pertaining to -/5/4 share was mortgaged and the respondents by
their sale certificate got a right in the sir land also.
Now what happened after the mortgage deed in
favour of the respondents was that the appellant purchased the entire -/10/8
share of Ramchandar subject to the mortgage of the respondents in 1932. At that
time Ramchandar became an ex- proprietary tenant of his entire sir relating to
this share under s. 49 of the Tenancy Act. In 1936 Ramchandar was ejected from
the ex-proprietary tenancy which came in the possession of the appellant as
lambardar and has apparently since then remained in his possession. The case of
the respondents is that in 1936 their mortgage was subsisting and the sir land
which thus came into the possession of the appellant on the extinction of the
ex-proprietary tenancy became an accession to the mortgage and, therefore, they
as mortgagees were entitled to half share in the lands which thus came into the
possession of the appellant. We have already pointed out that the mortgage
covered the sir plots also so for as the proprietary rights in them were
concerned. Therefore, when Ramchandar's ex-proprietary rights came to an end
and the land came into the possession of the appellant and became khudkashat,
the mortgage would cover this khudkashat land to the extent of the mortgagees'
share therein. It is, true that if Ramchandar's ex- proprietary tenancy had
continued, the mortgagee would have no right to ask for half share in it; but
when the ex- proprietary tenancy was extinguished and this land came in the
possession of the lambardar mortgagor it, was an accession to the mortgage
under s. 70 of the Transfer,of Property Act and the mortgagees could claim a
share in it., It was however urged that accession to be available to 921 the
mortgage must be a legal accession. We however see no illegality in the
accession which took place. There is also no doubt that the accession took
place when the mortgage was still subsisting. Therefore, we agree with the High
Court that on the ex-proprietary tenancy being extinguished, the sir land which
Would otherwise-have remained in the exclusive possession of Ramchandar as an
ex-proprietary tenant became an accession to the mortgaged property and the
respondents would be entitled to half of it on their purchasing the /5/4 share
in execution of the decree on the mortgage. The fact that the rent of an
ex-proprietary tenant is due to the person whose ex-proprietary tenant he
becomes by virtue of the sale or mortgage with possession would make no
difference after ex-proprietary tenancy is extinguished, for on such extinction
the land would go to the entire proprietary body and would thus in this case be
an accession to the mortgage to the extent of the share mortgaged.
This brings us to the lands in the name of
Ramchandar's mother. It appears that these lands came into the possession of
Ramchandar after the mortgage but before the institution of the mortgage suit.
They were nominally recorded in the name of his mother and in 1932 after his
entire share was purchased by the appellant lie was recorded as an occupancy
tenant of these lands. Later the appellant came into possession of them
apparently as a lambardar. It is not clear when and how the appellant got
possession of them. There can be no doubt however that his possession was for
the entire body of proprietors and the respondents would be entitled to a share
in them. But it was urged that the claim of the respondents to these lands was
barred by 0. 11, r. 2 of the Code of Civil Procedure, because they were not
specified in the plaint based on the mortgage deed of 1920.
Reliance in this connection is placed on
Hazarilal v. Hazarimal (1) and Seth Manakchand v. Chaube Manoharlal (2).
These cases in our opinion do not apply,
because they are cases of foreclosure while in (1) A. I. R. 1923 Nag. 130, (2)
A.I.R. 1944 P.C 46, 922 the present case the respondents' suit was for sale of
the share mortgaged with them. Further in the plaint, when specifying the
khudkashat plots it wag made clear that they were khudkashat on the date of the
mortgage; the respondents thus did not specify the khudkashat plots on the date
of the plaint. Though they had specified some plots in the plaint which were
mentioned in the sale certificate also, the suit "-as for the sale of the
entire /5/4 share and that would include khudkashat lands pertaining to the
share existing at the time when the suit was filed. It is not necessary in a
suit for sale to specify the lands in the possession of the mortgagor
specifically and they would pass on sale along with the share sold. The claim,
therefore, would not be barred under 0. 11, r. 2, on the ground that these
plots entered in the name of the mother of Ramchandar were not specifically
mentioned in the plaint.
This leaves certain lands which came into the
possession of the appellant as a lambardar in the ordinary course of
management. The respondents would clearly be entitled to a share in these lands
also on payment of proportionate expenses incurred by the appellant in the
course of suits in which he came into possession. This is what the High Court
has ordered and we see no reason to disagree with that view.
The appeal, therefore, fails and is hereby
dismissed with costs.
Appeal dismissed.
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