Ram Adhar
Singh & Ors Vs. Bansi [1987] INSC 72 (6 March 1987)
Sen,
A.P. (J) Sen, A.P. (J) Eradi, V. Balakrishna (J)
CITATION:
1987 AIR 987 1987 SCR (2) 595 1987 SCC (2) 482 JT 1987 (1) 704 1987 SCALE
(1)577
ACT:
U.P. Zamindari
Abolition and Land Reforms Act, 1951--Section 21(1)(d)--Usufructuary mortgage
by an occupancy tenant--Not valid in eye of law--Mortgagee entitled to retain
possession only till repayment of mortgage debt.
Recovery
of Rents (Bengal) Act, 1859---Section 6--Usufructuary
mortage of occupancy holding--Impermissible.
U.P.
Debt Redemption Act, 1940--All usufructuary mortgages became self-liquidating
mortgages.
HEAD NOTE:
The
first respondent's suit under Section 202 of the U.P. Zamindari Abolition and
Land Reforms Act, 1951 for possessing on payment of the mortgage money and ejectment
of the appellants under Section 21(1)(d) of the Act was resisted on the ground
that the right of redemption stood extinguished in the year 1929 as the usufructuary
mortgage which was executed when the Recovery of Rents (Bengal), Act, 1859 was
in force, was a valid one and the mortgagors, the predecessors in interest of
the respondent had lost all their rights titles and interest in the land. The
Judicial Officer dismissed the suit.
On
appeal, the Additional Commissioner decreed the first respondent-plaintiff's
suit holding that the usufructuary mortgage of occupancy rights was valid only
in a qualified sense in that the appellants were entitled to retain possession
until the mortgage debt was paid and that no tenancy law right from the
Recovery of Rents (Bengal) Act, 1859 to U.P. Tenancy Act, 1939 ever made the
occupancy rights transferable.
The
appeal to the Board of Revenue having been dismissed, the appellants moved the
High Court under Article 226 and a Single Judge of the High Court dismissed the
writ petition and upheld the order of the Board of Revenue.
596 On
appeal, the Division Bench held that the transaction of the present kind was
not a mortgage properly so-called but yet was a mortgage within the meaning of
Section 21(1)(d) of the Act.
In
appeal to this Court, challenging the correctness of the view of the High
Court, it was contended that both the Board of Revenue as well as the High
Court failed to appreciate that the usufructuary mortgage in question was
executed at a time when the Recovery of Rents (Bengal) Act, 1859 was in force,
and that a usufructuary mortgage was valid under Section 6 of the Act.
Dismissing
the appeal, this Court,
HELD:
1.1 The settled law as administered in the then United Provinces was that a usufructuary
mortgage of an occupancy holding was invalid and there was no transfer of an
interest by the occupancy tenant and the mortgagee acquired no right other than
the right to retain possession and fail back upon the stipulation in the
so-called mortgage bond till his money was paid. [599C-D]
1.2
The view that a usufructuary mortgage by an occupancy tenant was not valid in
the eye of law has been accepted by the Legislature in clause (d) of Section
21(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1951 and the matter
stands concluded by the doctrine of stare decisis. To hold otherwise now would
imply not only unsettling the law which has stood the test of time for over 100
years but would have the effect of reopening transactions past and closed and
unsettling titles. [599D-E]
2.1
There is nothing in Section 6 of the Recovery of Rents (Bengal) Act to suggest that a usufructuary
mortgage of an occupancy holding like the transaction in question was
permissible. [599F]
2.2
The right of occupancy tenant was not transferable under Section 6 of the Act
and in case of such a transfer the tenant would he deemed to have abandoned the
holding and, therefore, the right of an occupancy tenant cannot be set up by
the purchaser in defence to a suit for ejectment by the zamindar. [600B]
3. In
the instant case, the relationship of the parties was regulated by the
stipulations contained in the mortgage bond and under the terms the appellants
were entitled to retain possession till the mortgage debt was paid off. Under
the U.P. Debt Redemption Act, 1940, all 597 usufructuary mortgages became
serf-liquidating mortgages.
The
mortgage money would be deemed to have been paid off.
[600F-G]
Narendra Narayan Roy Chowdhary v. Ishan Chandra Sen, [1974] 13 Bengal LR 278; Khiali Ram v. Nathu Lal,
ILR [1893] 15 All 219 (FB); Samharu v. Dharamraj Pandey and Ors., [1969] All. LJ
943 (FB); Barhu Singh & Ors. v. Kharpattu & Ors., [1956], All LJ 87 and
Ram Prasad v. Bishambhar Singh, AIR 1946 All 400, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 188 of 1974.
From
the Judgment and Decree dated 25.8.72 of the Allahabad High Court in Special
Appeal No. 223 of 1966.
P.P. Juneja
for the Appellant.
Mrs. Rani
Chhabra and Mrs. Rachna Gupta for the Respondents.
The
Judgment of the Court was delivered by SEN, J. The short question involved in
this' appeal on certificate is whether a Division Bench of the Allahabad High
Court was right in following the decision of an earlier Division Bench in Barhu
Singh & Ors. v. Kharpattu & Ors., [1956] All LJ 87, which was later
reiterated in Samheru v. Dharamraj Pandey & Ors., [1969] All LJ 943 (FB),
that a usufructuary mortgage of an occupancy holding was not valid as a
mortgage with all its incidents and subject to the provisions of law relating
to usufructuary mortgages, but was valid only to the limited extent that the
mortgagee was entitled only to retain possession of the land mortgaged till
there was repayment of the mortgage debt.
The
question arose in proceedings in a suit under s.202 of the U.P. Zamindari
Abolition and Land Reforms Act, 1951 for possession on payment of the mortgage
money brought by respondent No. 1 Bansi claiming himself to be an heir of the
original mortgagors Sheo Balak and Ram Phal, on the ground that the appellants
who were the successors-in-interest of the original mortgagee Bhairo Singh, had
become asamis and therefore liable to ejectment under s.21(1)(d) of the Act.
The
suit was resisted by the appellants on the ground inter alia that the usufructuary
mortgage deed dated July 21, 1869 having been executed when the Recovery of
Rents (Bengal) Act, 1859 was in force, 598 was a valid one and therefore the
fight of redemption stood extinguished in the year 1929 as a result of which
the mortgagors Sheo Balak and Ram Phal, the predecessors-in interest of the
respondents lost all their right, title and interest in the land and thus the
appellants could not be treated as asamis liable to ejectment under s.21(1)(d)
of the Act but had indeed become sirdars. That defence of theirs weighed with
the Judicial Officer, Varanasi who by his judgment dated May 11, 1960 dismissed the plaintiffs suit. On
appeal by the respondents, the Additional Commissioner, Varanasi Division, Varanasi by his judgment dated October 10, 1960 decreed the plaintiff's suit
holding that the usufructuary mortgage of occupancy rights was valid only in a
qualified sense in that the appellants were entitled to retain possession until
the mortgage debt was paid. The learned Additional Commissioner observed that
no tenancy law fight from the Recovery of Rents (Bengal) Act, 1859 to U.P.
Tenancy
Act, 1939 ever made the occupancy fights transferable. The appellants preferred
an appeal to the Board of Revenue but Shri S.N. Mitra, ICS, Judicial Member,
Board of Revenue by his judgment and order dated April 25, 1963 dismissed the appeal. The appellants moved the High Court
under Art. 226 of the Constitution but a learned Single Judge by his judgment
dated February 28, 1966 dismissed the writ petition and upheld the order of the
Board of Revenue.
On
appeal, a Division Bench following the decisions in Khiali Ram v. Nathu Lal,
ILR (1893) 15 All 219 (FB), Barhu Singh v. Kharpattu (supra) and Samharu v. Dharamraj
Pandey (supra) held that the transaction of the present kind was not a mortgage
properly so-called but yet was a mortgage within the meaning of s.21(1)(d) of
the Act.
Shri Juneja,
learned counsel for the appellants, who are successors-in-interest of the
original mortgagee Bhairo Singh strenuously assails the correctness of that
view and contends that both the Board of Revenue as well as the High Court
failed to appreciate that the usufructuary mortgage of the occupancy holding in
question was executed by Sheo Balak and Ram Phal, the predecessors-in-interest
of the respondents, on Asadh Sudi 12 Samvat 1925, corresponding to July 21,
1860 i.e. at a time when the Recovery of Rents (Bengal) Act, 1859 was in force.
He presses into service certain observations of Sir Richard Couch, CJ in Narendra
Narayan Roy Chowdhary v. Ishan Chandra Sen, [1974] 13 Bengal LR 278 for the
submission that a usufructuary mortgage was valid under s.6 of that Act. We
find it difficult to accept the contention.
We
find that it has been the consistent view of the Allahabad 599 High Court that
a usufructuary mortgage of an occupancy holding was not valid as a mortgage
with all its incidents and subject to the provisions of law relating to usufructuary
mortgage but was valid only in a qualified sense i.e. in the sense of
subletting with a covenant that the mortgagor will not be entitled to recover
possession without payment of the mortgage money, and further that under such a
mortgage there is no transfer of the right of an occupancy tenant and
consequently no suit for redemption was maintainable nor was there any
extinguishment of the right of an occupancy tenant upon the expiry of the
period of limitation fixed for redemption under Art. 148 of the Limitation Act,
1908. There is a long catena of decisions dealing with the question starting
from Khiali Ram v. Nathu Lal (supra) down to Samharu v. Dharamraj Pandey
(supra). It follows that it has been the settled law as administered in the
then United Provinces that a usufructuary mortgage of an occupancy holding was
invalid and there was no transer of an interest by the occupancy tenant and the
mortgage acquired no other right other than the right to retain possession and
fall back upon the stipulation in the so-called mortgage bond till his money
was paid. As pointed out in the Full Bench decision in Samharu v. Dharamraj Pandey
(supra), the view that a usufructuary mortgage by an occupancy tenant was not
valid in the eye of law has been accepted by the Legislature in cl.(d) of
s.21(1) of the U.P. Zamindari Abolition & Land Reforms Act, 195 1. The
matter stands concluded by the doctrine of stare decisis. If we were to
subscribe to the contention advanced by the learned counsel for the appellants,
it would imply not only unsettling the law which has stood the test time for
over 100 years but have the effect of reopening transactions past and closed
and unsettling titles all over the State.
We
also find no substance in the contention advanced.
There
is nothing in s.6 of the Recovery of Rents (Bengal) Act to suggest that a usufructuary
mortgage of an occupancy holding like the transaction in question was
permissible.
Sir
Richard Couch, CJ in the course of his judgment in Narendra Narayan Roy Chowdhary's
case has referred to s.6 of that Act which, in terms, made the holding of an
occupancy tenant a non-transferable tenure. After referring to the provision
contained in s.6 which provided for conferral of occupancy rights on a ryot who
was in cultivating possession of his land for a period of 12 years, the learned
Chief Justice unequivocally stated that the occupancy rights were not
transferable:
"The
ordinary construction of the word appears to me to be, that the right is only
to be in the person who has 600 occupied for 12 years, and it was not intended
to give any right of property which could be transferred." After holding
that the right of occupancy tenant was not transferable under s.6 of the Act,
the learned Chief Justice went on to observe that in case of such a transfer,
the tenant would be deemed to have abandoned the holding and therefore the
right of an occupancy tenant cannot be set up by the purchaser in defence to a
suit for ejectment by the zamindar:
"Now,
if a ryot having a right of occupancy endeavours to transfer it to another
person, and, in fact, quits his occupation, and ceases himself to cultivate or
hold the land, it appears to me that he may be rightly considered to have
abandoned his right, and that nothing is left in him which would prevent the zamindar
from recovering the possession from the person who claims under the
transfer." That very eminent Judge explained this in another way:
"(I)f
the right which is given by the law is one which exists only so long as he
holds or cultivates the land, when he ceases to do that, by selling his
supposed right and putting another in his place, his fight is gone and cannot
stand in the way of the landlord's recovering possession." We fail to
appreciate how these observations can be of any avail to the appellants. The
view expressed by Couch, CJ that the right of an occupancy tenant under s.6 of
the Recovery of Rents (Bengal) Act does not lay down any contrary
principle. As to the question of abandonment, the relationship of the parties
was regulated by the stipulations contained in the mortgage bond and under the
terms the appellants were entitled to retain possession till the mortgage debt
was paid of. we wish to point out that under the U.P. Debt Redemption Act, 1940
all usufructuary mortgages became self-liquidating mortgages. As held by the
High Court in Ram Prasad v. Bishambhar Singh, AIR 1946 All 400, the mortgage
money would be deemed to have been paid off.
For
these reasons, the appeal must fail and is dismissed with costs.
N.P.V.
Appeal dismissed.
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