Ram Chand
Vs. Randhir Singh [1994] INSC 514 (5 October 1994)
Punchhi,
M.M. Punchhi, M.M. Kuldip Singh (J) Ramaswamy, K.
CITATION:
1995 AIR 130 1994 SCC (6) 552 JT 1994 (6) 404 1994 SCALE (4)395
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by M.M. PUNCHHI, J.- This appeal, directed
against the judgment and order of a learned Single Judge of the Punjab and Haryana
High Court dated 1-2-1983, passed in Regular Second Appeal No. 1611 of 1973,
raises two questions of importance, on the true interpretation of clause
Fourthly in 555 Section 15(1)(a) of the Punjab Pre-emption Act, 1913 as
applicable to the State of Haryana, being:
(i) whether
an agricultural tenant inducted by the usufructuary mortgagee, has a right of
pre-emption over the sale made by the mortgagor-vendor? and
(ii) whether
an agricultural tenant holding under tenancy of the vendor a part of the sold
land is entitled to pre-empt the entire sale?
2.
Following are the facts as gathered from one or the other judgments of the
three courts below. Some land including 50 kanals 6 marlas of land in Khasra
Nos. 294/9 (9-12), 1 (6-16), 2 (3-2), 10 (7-8), 12 (8-0) and 13 (8-0) situated
in Village Bhattukalan, Tehsil Fatehabad, District Hissar was owned by one Mool
Chand. As per revenue records adduced in evidence before the learned trial
Judge, the land stood tenanted even prior to the year 1946 and was so in the
year 1950 with one Net Ram Gosain. In 1951, Mool Chand died and his estate was
mutated in favour of his widow and two sons, one of whom was Mitter Sen and in
whose share the above land fell. Mitter Sen mortgaged six khasra numbers
barring 294/9 (9-12), from his inherited land on 16-12-1951 in favour of Amin Chand
for Rs 2400 and Mutation No. 1548 in that regard was sanctioned and recorded in
the revenue papers. The tenancy however was not affected. Under the tenancy
laws, as applicable to Haryana, the agricultural year commences from 15th June,
whereafter time arrives to sow the Kharif crop. At the time of the crop
inspection of Kharif 1953, done on maturity of crops between October to
December as per departmental instructions, Ratna Ram, the father of the present
appellants herein, was found to be the tenant of the mortgaged as also
non-mortgaged land of Mitter Sen on payment of one-third produce, and was
recorded as such. The records are silent however as to whether Ratna was
inducted as a tenant by Mitter Sen, owner of the land or Amin Chand, mortgagee.
Be that as it may, the cultivation of the land by Ratna, father of the
appellant continued till his death, whereafter the appellants were substituted
as tenants by inheritance. Revenue records of intervening years kept showing
the appellants or their father, as the case may be, sometimes as tenants under
the owner, Mitter Sen and sometimes under Amin Chand, the mortgagee. While so, Mitter
Sen, owner-mortgagor on 6-5-1966 re-mortgaged the disputed land with
possession to the same Amin Chand for Rs 1500 by a Registered Mortgage Deed.
Fifteen days later, on 21-5-1966, he redeemed the former mortgage of
16-12-1951.
The
appellants remained unaffected by these transfers.
Mutation
for the subsequent mortgage dated 6-5-1966 was sanctioned on 21-7-1966.
3. On 4-3-1968, Mitter Sen sold the entire 50 kanals 6 marlas of
land for a total consideration of Rs 10,000 to the respondents. In the sale, a
provision was made in letting the vendees keep the sum due for redeeming the
existing mortgage. The appellants sought pre-emption of the sale in its
entirety. The trial court granted them a decree for pre-emption in respect of
the nonmortgaged Khasra No. 294/9 (9 kanals and 12 marlas) only on the payment
556 of proportionate price of Rs 2122.30 paise and dismissed the suit with
regard to the mortgaged land, now in dispute.
4. The
appellants as well as the respondents filed cross appeals before the District
Judge, Hissar who allowed the appeal of the pre-emptorappellants granting them
a pre- emption decree and dismissed the appeal of the respondents regarding the
other part, in which the appellants had been successful qua one khasra number
before the trial Judge.
The
respondents' regular second appeal before the High Court was allowed and the
judgment and decree of the trial court was restored with the result that the
appellants were denied the relief of preempting sale of the land which was
under mortgage. The question, therefore, has arisen whether the appellants had
such a right of pre-emption as claimed by them and on what basis.
5.
Section 15(1)(a) Fourthly would, when properly arranged and culled out from the
text, read as follows:
"The
right of pre-emption in respect of agricultural land shall vest ... where the
sale is by a sole owner ... in the tenant who holds under tenancy of the
vendor, the land sold or a part thereof."
6. The
first question is raised on the premise that the appellants (before them their
father) had been inducted in the disputed land in 1953. The land in dispute was
already tenanted when mortgaged for the first time in 1951. It remained
tenanted thereafter throughout. There was only a change of tenants in the
process of time. From this, it was sought to be urged that deriving usufruct of
the land by tenanting was the accepted mode evidenced from the conduct of
parties. It was also urged that there was no prohibition in terms of the mortgage
to the induction of tenants by the mortgagee. It was stressed that within the
terms of Section 76(a) of the Transfer of Property Act, a mortgagee has a right
to manage the property as a person of ordinary prudence would manage, if it
were his own. It was also pointed out that since tenants were given some
security from eviction under the provisions of the Punjab Security of Land
Tenancy Act, 1953 with effect from 15-4-1953, the appellants as tenants by legal
fiction had become the tenants of the vendor insofar as the mortgaged property
was concerned.
7. The
words "if it were his own" in Section 76(a) of the Transfer of
Property Act make the mortgagee, unless prohibited from doing so, the second
self of the mortgagor, when he as a prudent owner leases out agricultural land.
It is well known and settled that in case of lease of agricultural land, the
lessee, by the very process of cultivation, has to bring in inputs, effort and
as a termed measure fertilization of the soil, pursuing constant and continuous
agricultural activity and vigil to attain acceptable results. His effort is not
that of one time but a continuous one with a future in view and that is why
there is a presumption that agricultural leases are from year to year and not
of monthly or daily duration. In the instant case, when there was no
prohibition to lease out the mortgaged land in the event of the then tenant
vacating, what better could be an instance of good management by the mortgagee
in putting another tenant, whose existence on 557 the land, as future tells us,
was never questioned at any time by Mitter Sen, and more so, at the time of the
execution of the second mortgage.
8. The
legal position with regard to the agricultural leases, has also been settled by
a five-judge Bench of this Hon'ble Court in Prabhu v. Ramdeo1 by holding that
persons inducted into agricultural lands as tenants by a usufructuary
mortgagee, who become entitled to protection under the tenancy laws, cannot be
ejected by the mortgagor on the ground that the mortgage of the land had been
redeemed. Even though that was a case in which the right of tenure accrued to
the tenants after the creation of the lease but on principle it would not make
a difference insofar as the present case is concerned, where the Punjab Security
of Land Tenures Act giving protection to the tenants from ejectment, except on
grounds mentioned in the statute, became available from 15-4-1953 onwards, and
the lease herein has been shown to have commenced with the agricultural year
starting from 15-6-1953, within a span of two months of that Act being
enforced. When viewed in this backdrop it becomes apparent that when the
mortgagee changed the tenant, he had done so under his legal right and
obligation under Section 76(a) of the Transfer of Property Act and the just and
equitable principles involved therein.
Thus
his deeds in that regard are to be considered as deeds of the mortgagor. Having
arrived at such conclusion, it is not difficult then to proceed on the footing
that the tenancy created by the mortgagee was in sum and substance the tenancy
created by and for the mortgagor and when on that basis the mortgagor gets to
be the vendor of the land sold during the subsistence of the mortgage, the
tenants inducted on the land by the mortgagee for him, non-ejectible at will,
derive the right of preemption. For the ultimate social goal is that the land
must go to the tiller, Whose bare feet get kissed and blessed by the feel of
Mother Earth. In Atam Prakash v. State of Haryana2, Chinnappa Reddy, J. speaking for this Court had held: (SCC p. 261, para
10) "The right of pre-emption vested in a tenant can also be easily
sustained. There can be no denying that the movement of all land reform
legislations has been towards enabling the tiller of the soil to obtain
proprietary right in the soil so that he may not be disturbed from possession
of the land and deprived of his livelihood by a superior proprietor. The right
of pre-emption in favour of a tenant granted by the Act is only another
instance of a legislation aimed at protecting the tenant.
There
can be no doubt that tenants form a distinct class by themselves and the right
of pre-emption granted in their favour is reasonable and in the public
interest." The first question is thus answered accordingly to hold that an
agricultural tenant inducted in terms of Section 76(a) of the Transfer of
Property Act, by the usufructuary mortgage, has a right of pre-emption over the
sale made by the mortgagor-vendor.
1 AIR
1966 SC 1721 2 (1986) 2 SCC 249 558
9. The
second question is, should the provision be interpreted confining the right to
the tenanted area or extending it to the entire area covered by the sale? It
has been contended on behalf of the appellants that on the findings recorded by
the courts below they were tenants over a part of the land sold, for which they
have been given a decree of pre-emption. They claim that on a true
interpretation of the provision they should get the whole bargain in
pre-emption, even if they are not treated as tenants of the other part. It was
also asserted that if in a sale of agricultural land, some part of it was
tenanted then the right vests in the tenant to seek pre-emption of the sale in
entirety because of the jural relationship existing. It was emphasised that the
qualification for seeking pre-emption was barely being a tenant who holds land
under tenancy of the vendor, not necessarily the whole. The tenanted part
thereof, entitles him to have the whole because it is involved in the sale and
so connected with the vendor through that land. We have not been made any wiser
by any precedent cited at the bar for or against the preposition raised. Even
the point as such was not raised before the courts below but has arisen
otherwise in discussion.
10. A
learned Single Judge of the Punjab and Haryana High Court in Balwant Singh v. Mehar
Singh3, interpreting the provision, has viewed that the word 'holds' in the
provision is not to be construed in isolation but is to be read with its
succeeding words "under tenancy". This ratio of the High Court had
apparently risen where the tenant claiming pre-emption of the suit land had,
after the sale, been ousted from physical possession and his claim for pre-
emption was being protected by the court. It is in that context that the High
Court ruled that the word 'holds' must be read along with the words "under
tenancy" and that the right of tenancy did not merely mean the act of
physical possession but also included a bunch of incorporeal rights which are
not capable of physical possession. Qualificatory rights in that regard were
thus settled by precedent that the preempting tenant should merely have held
the land on the date of sale and not necessarily at any time thereafter to
satisfy the rule of maintaining the status on three occasions i.e. on the date
of sale, on the date of the suit and on the date of the decree of the first
court. However, it has always remained unquestioned that the tenant can pre- empt
the sale with regard to the portion of the land actually in his tenancy. To the
untenanted portion which was part of the sale, a bar has always been read. All
the same, it would have to be gathered from the provision whether such right of
pre-emption, in respect of agricultural land, has been made to vest in the
tenant? It is apparent that the tenant, in priority has the last right for
preemption in Section 15(1) of the Act. The language conferring such right, as
is evident, is not punctuated.
All
the words have been put together. Its language thus is capable of more than one
meaning. Therefore, whatever goes to further the intendment of the measure
should be the basis of interpretation. It is well to remember that this right
to the tenant was conferred by amendment in the Act in the year 1960 in the
post- 559 constitutional era as part of agrarian reform. Atam Prakash case2 is
a clear pointer. Unlike its other provisions, save in the case of a co-sharer,
which have been struck down as archaic and unconstitutional in Atam Prakash
case2, this part has been kept alive, attuned as it is with modern thinking.
Thus the provision would need a purposive interpretation furthering, if not
expanding, the right rather than curtailing it. If the words "holds under
tenancy" be not disjuncted as per dictum of Balwant Singh case3, they have
then as a sequitur to be conjuncted with the words "of the vendor".
If so the right thus is vested in the tenant who holds under tenancy of the
vendor not only the land sold but even a part thereof, i.e., of the land sold.
Thus on interpretation, this view can be taken that when a tenanted part of
land is involved in the sale, the tenant thereof has a right of pre-emption qua
the entire sold land and the vendees cannot resist the same.
11.
This interpretation is advantageous from the legal as also the economic and
social point of view in the rural society. Permitting total sale being
preempted is to prevent fragmentation of the erstwhile holding of the vendor.
It does away disputes of partitioning or sharing sources of irrigation and
working out rights to take water to agricultural fields through the fields of
the other which need was non-existent under the vendor's management.
Likewise
for passages of ingress and egress, problems may come up. It obviates the
necessity of settling other disputes such as apportionment of price of the
tenanted area on the splitting of the sale, the possible design of its being
inflated to frighten the prospective tenant pre- emptor. It is attuned with the
principle of bar to partial pre-emption. It also avoids the lurking fear of the
tenant having to deal with a stranger. Such advantages are just some. Taking
the language of the text and its plain advantageous meaning, we would rather
give such an interpretation to the provision which would entitle a tenant to
pre-empt a sale of agricultural land in which his tenanted land is included, on
the strength of which he can claim the entire bargain in the exercise of his
right of substitution over the vendee. A Full Bench of the Punjab High Court in
Uttam Singh v. Kartar Singh4 had enumerated one of the grounds in upholding the
vires of Section 15 as avoidance of fragmentation of holding. This Court in Ram
Sarup v. Munshi5, testing the ground aforementioned in the case of a son,
observed as follows: (SCR p. 873) "Nor can the ground of avoidance of fragmentation
of holdings afford assistance to sustain the claim of a son to pre-empt in the
event of a sale by a sole owner-father, for that criterion has primary
relevance to the right of pre-emption enjoyed by co-sharers and the like."
12.
The word 'like' was obviously used to cover up the case of someone other than
the co-sharer. And besides the co- sharer, only the tenant now has the right of
pre-emption.
So the
word 'like' seemingly was conceived to include the case of a tenant. The second
question therefore is answered 4 AIR 1954 Punj 55 55 Punj LR 500 : ILR 1954 Punj
232 5 (1963) 3 SCR 858 AIR 1963 SC 553 560 accordingly to hold that an
agricultural tenant holding under tenancy of the vendor a part of the sold land
is entitled to pre-empt the entire sale.
13.
The trial Judge dismissed the suit of the appellants on the understanding that
the appellants were not tenants of the mortgagor-vendor. The lower appellate
court took the view that between the date of the second mortgage and date of
the mutation on 21-7-1966, the first mortgage had been redeemed and from that
moment onwards the appellants became direct tenants of the vendor and thus the
land for the second time, when mortgaged, stood tenanted. That view was taken
possibly on the understanding that till mutation was effected, the second
mortgage was not operative. There was an obvious fallacy in that reasoning
which the High Court corrected in upsetting that view. The High Court seemed
otherwise aware that on redemption of mortgage, the lease created by the
mortgagee, such as the present one, would have to be taken as if created by the
mortgagor. This outcome was circumvented taking the view that the second
mortgage was created at a time when the first one was subsisting during which
period the lease in favour of the appellants was created; the lease which
continued uninterrupted under the second mortgage. The High Court, in our view,
should have drawn the inference that the second mortgage was nothing but an
implicit act of ratification of the deeds of the mortgagee, who was no other
but the same Amin Chand, the creator of the lease. At that time, no objection
as to the existence of the lease was raised. By his conduct the mortgagor
revealed that he had taken the created lease as his own, lending qualification
to the appellants in being the vendor's tenants over his holding.
14. We
are thus of the view that in these facts and circumstances, when the appellants
have been on the land for over 40 years as tenants, in the otherwise dying law
of pre- emption, such rights in favour of them, on true interpretation of the
statute, shall be read in the way we have answered the two questions aforeposed.
We, therefore, allow this appeal and set aside the impugned order of the High
Court and that of the trial court restoring operatively that of the lower
appellate court, decreeing the suit of preemption of the appellants. They shall
make deposit of the sum as required by the lower appellate court on terms on or
before 31-12-1994 failing which the law as settled would remain, but the
appellants would have denied to themselves the relief of a positive decree. In
the circumstances, there shall be no order as to costs.
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