Ram Adhar Singh (Dead) Through Lrs. & Ors. Vs. Bansi (Dead) Through Lrs. & Ors.
EmailAppeal: Civil Appeal No. 186 of 1974.
Petitioner: Ram Adhar Singh (Dead) Through Lrs. & Ors.
Respondent: Bansi (Dead) Through Lrs. & Ors.
Apeal: Civil Appeal No. 186 of 1974.
Judges: A.P. SEN & V. BALAKRISHNA ERADI, JJ.
Date of Judgment: Mar 06, 1987
Head Note:
U.P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1951:
Section 21(1)(d) – Recovery of Rents (Bengal) Act, 1859; Section 6 – The Limitation Act, 1908; Article 148 – Usufructuary mortgage of an occupancy holding – Not valid as a mortgage with all its incidents – Mortgagee entitled only to retain possession of the land mortgaged till there was repayment of the mortgage debt.
Cases Reffered:
1. Ram Prasad v. Bishamber Singh, A.I.R. (1946) A11.400.
2. Barhu Singh & Ors. v. Kharpattu & Ors., (1956) A11.LJ 87.
3. Samharu v. Dharamraj Pandey & Ors., (1969) A11.LJ 943 (FB).
2. Barhu Singh & Ors. v. Kharpattu & Ors., (1956) A11.LJ 87.
3. Samharu v. Dharamraj Pandey & Ors., (1969) A11.LJ 943 (FB).
JUDGEMENT:
SEN, J.
1. 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.
2. 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, 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.
3. 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 respond-
ents, 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.
4. We find that it has been the consistent view of the Allaha-
bad 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.
5. 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 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.’
6. 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 con-
trary principle. As to the question of abandonment, the
relationship of the parties was regulated by the stipula-
tions 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 mort-
gages 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.
7. For these reasons, the appeal must fail and is dismissed
with costs.
Appeal dismissed.
1. 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.
2. 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, 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.
3. 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 respond-
ents, 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.
4. We find that it has been the consistent view of the Allaha-
bad 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.
5. 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 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.’
6. 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 con-
trary principle. As to the question of abandonment, the
relationship of the parties was regulated by the stipula-
tions 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 mort-
gages 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.
7. For these reasons, the appeal must fail and is dismissed
with costs.
Appeal dismissed.
