Mortgagees claimed possession of 'sir' land via purchases under a decree on an arbitration award and insolvency proceedings against mortgagors. The Court held cultivatory rights remained with mortgagors who became occupancy tenants; transfers without revenue authority permission were void; appeals dismissed.
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GOV ARDHAN DASS & 8 ORS.
v.
SMT. SITABAJ
May 3, 1968
[J. C. SHAH AND V. BllARGAVA, JJ.J
Cenlral Prori11ces and Berar Tenc.ncy Act, 1883-Mortgage or 'sir' lands-Whether cultivating rights given up by n1ortgagors-Acqulsition of occupancy rights under ss. 12 and 13.
Central Provinces Tenancy Act (I of 1922), ss. 12 and 13, 49 and 50-Acquirilion of tenuncy rights by n1ortgagors tlzcreundcr-lffcct of purchase by 1nortgagee of the n1ortgagor· rights in insolvency proceeding.
The pre<lccc-;sors-in-intcrcst of the respondent executed usufrutory mortgage da'ds in 1898 in favour of the predecessors-in-interest of the appellants in respect of certain 'sir' land. Jn 1940 oI>O of 1he mortgagors, R, t!Y,, husband of respondent, was declared insolvent and his share in the proprietary rights which vested in the Jno;olvcncy Court \Vas purchased by the morlgagce. Some disputes arose about the amount and the right of redemption under the mortgage between the mortgagee and the other mortgagor S, the matter w:ls rCferrcd to arhitration. In pursuance of ·the decree in this award, the mortgagee purchased the share of ·s· including his rightc; in 'sir'. R died, and when his widow the respondent was dispossessed from the land in pursuance of the mortgage decree posSC<l in terms of the a\·ard. she filC(l an application to the Revenue Court under s. 12 and s. f3 of the C~entral Provinces Tenancy Act for rCstoration of possession of her occupancy rights in the land, which was aHowed. Thereupon the appellants filed the suit claiming possession. which was partly allowc-0. Both the parties appealed and in appeals the suit was dismissed, which in furthct" appeals, was upheld hy the High C-Ourt.
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HELD : The. appcllantc; were not entitled to claim possession in this suit.
The mere m::ntion of the 'sir' land as part of the property mortgaged can only be interpreted as laying dov.·n that the proprietary rights in the 'sir' land "'·ere subject of the mortgages. so the cultivato'ry rights continued to remain \lt'ith the mortgagors. The circumstance was further borne out hv the fact that even after execution of the usufructuary mortgages in 1895, the mortgagors continued to cultivate this land and actual possession over this land fo'r the purposes of cultivating it was not obtained by the mortgagee. In nv:;sc circumstances. it vt'as clear that the mortgagors must have become e:a::-proprietary occupancy tenants of this land in the year 1895. [273 G. HJ
Even if the mortga~ors become ordinary tenants in 1895. it was clear that by tm time the Act came into force in the year 1920, they must have hecomc occupancy tenants as defin,ed in .s. 10 of the A71· So th.e claim of the appellants that they acquired rights to possession of this land on the basis of the mortgages in 1895, in these circ:umstances, must fail. [274 DJ
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The appellants• claim that the rights of S pO'sed to them when they purchased his right~ in execution of the decree under the award and that the shore of R passed to them when his rights were transferred by the Insolvency C-Ourt, fails in view of the provisions of s. 12 or s. 49 of the
rGOVARDF!AN v. SITABAI. (Bhargava, J.) 271
Section 12 barred the transfer of cultivatory rights of an occupancy tenant in execution of the decree of a civil court or in insolvency proceedings. In fact, such rights did not vest in the Insolvency Court at all under the. Provincial Insolvency Act. Consequently, the mortgagees could not acquire title to cultivatory right by virtue of the proceedings taken in execution of the decree in civil suit or in the insolvency proceedings. The right continued to vest in the mortgagors and the respondent, who was entitled as the :sole su'rvivor to those rights, was rightly restored to possession by the revenue authorities. [275 E-G]
The challenge, to the decision of the revenue authorities on the ground that its jurisdiction to grant relief under s. 13 of the Act is confined to cases where one of the co-itenants claims poss-ession on being illegally dispossessed and not in a case where the sole tenant has been dispossessed, was immaterial, because relief from the same revenue authority could be claimed by a sole tenant by an application under s. 100 of the Act. The application filed by the respondent could, therefore, be treated as an application under s. 100 of the Act in case she was the sole tenant, and the grant of relief to her was not without juriscijction. [275 H]
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 984 and 985 of 1965.
Appeals by special leave from the judgment and decree dated April 28, 1961 of the Madhya Pradesh High Court in Second Appeals Nos. 176 and 177 of 1969.
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H. R. Gokha/,e, S. T. Khirwadkar and I. N. Shroff, for the appellants.
R. S. Dabir, 0. P. Malhotra, P. C. Bhartari and /. B. Dadachanji for the respondent.
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The Judgment of ~he Court was delivered by
Bhargava, J. The appellants brought a suit against the respondent for possession- of a plot Kharsa No. 1227 having an area ·of 58.35 acres of Mouza Shahpur, Tehsil Burhanpur in November, 1950 on the ground that they had been unlawfully dispossessed from this land. Thls land formed part of the propel'ty of one Laxmanrao who had two sons Vishwasrao and Krishliarao. Krishnarao had· two sons Dinkerrao and Shamrao. Shamrao was adopted by Vishwasrao in the year 1895. The riht ;in certain village properties, including 'Sir' lands, vested in .this Jwnt family consisting of Vishwasrao, his adopted son Shamrao, ·and
[1969) I SC.R.
272
SUPREME COURT REPORTS
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his nephew Dinkerrao. The three of them jointly executed two mortgage deeds in that year, and, in the mortgage deeds, mentioned that they were mortgaging the property which was described as 'MaJguzari Mouzas and Sir land of Tchsil Burhanpur District Nimar', and 'Maufi Government land' situa1c in certain villages in Pargana Jainabad, Tehsil Burhanpur. The mortgages were in favour of the predeccssors-in-title of the appellants. In the year 1928, there was a partition in the j 0 in1 Hindu family of the mortgagors. By this time, Dinkerrao had died leaving two sons Ramchandrarao and Wamanrao. Vishwasrao and Shamrao had also died and Shamrao left an adopted son Shankerrao alias Narayanrao. who was the natural son of Dinkerrao, but had been adop1cd by Shamrao. The parties to the partition were, therefore, Shankerrao, the adopted son of Shamrao, Ramach<tndrarao and Wamc111rao the sons of Dinkerrao. Shankerrao received t share in the property. while Ramachandrarao and Wamnrao received ~ share each. In that partition Wamanrao separated from Shankerrao and Ramachandrarao who continued to be joint. and, with the consent of the mortgagee, the mortgage liability was not continued against the share of Wamanrao. The liability under the mortgages was undertaken entirely by Shankerrao and Ramachandrarao. On this partition, in the propcr1y remaining joint with Shankcrrao and Ramachandrarao, Shankerrao had 2/3rd share and Ramachandrarao had I /3rd share, because. originally. before partition Shankerrao was entitled to l share and Wamanrao to J shre.
In the year 1939, the proprietary rights of Shankerrao were purchased by one Vinayakrao, so that, under the law then existing, Shankerrao became the ex-proprietary occupancy tenant of his share in the 'Sir' plot No. 1227. In 1940, Ramachandrarao was declared insolvent and his share in the proprietary rights. which vested in the Tnsolvency Court, was sold and purchased by the mortgagee. The result was that Ramachandrarao also became ex-proprietary occupancy tenant of his 'sir' plot No. 1227, so that his plot became a co-tenancy of Shankerrao and Ramachandrarao in the capacity of ex-proprietary occupancy tenants. Thereafter. there was some dispute about the amount and the right of redemption under the mortgage between Shankerrao and th mortgagee, and this dispute was referred to an arbitrator, Sn Vipat, who gave his award, on the basis of which a decree was passed by the Court of Additional District Judge, Khandwa. In pursuance of hat decree, Shankerrao's 2/3rd share. including his rig.h.ts in the 'sir' plot No. 1227. was purchased by the mortgagee. Tn 1940, Ramachandrarao had died and his x-popretary occupancy rights in that plot No. 1227 had vested m his widow. Sitabai. the respondent in these appeals. Tn 1942, when she was dispossessed from this plot No. 1227 in pursuance of the mortgage
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GOVARDHAN v. SITABAI (Bhargava, !.)
273
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A· decree passed in terms of the award, she filed an application to the Revenue Court under sections 12 and 13 of the Cemral Provinces Tenancy Act I of 1920 (hereinafter referred to as "the Act") for restora1ion of possession of her occupancy rights in this plot No. 1227. The Revenue Court allowed her claim and restored her to the possession of this plot. Thereupon, the appel8 lants filed the suit claiming possession of this plot as mentioned above. The suit was partially decreed by the trial Court granting to the appellants the righ1 to joint possession with Sitabai on th.e basis that they had 1/3rd share in the plot, while Sitabai conunued to be entitled to the remaining 2/3rd share. Both parties filed appeals to the Court of the District Judge, Khandwa. Te lower appellate Court dismissed the appeal of the appellants m c respect of the 2/3rd share in this plot No. 1227, and allowed the respondent's appeal in respect of the l/3rd share of the sae plot, with the r~sult that the whole suit of the appellants stood dismissed. The appellants then filed two appeals before the High Court of Madhya Pradesh. The High Court dismissed both the appeals and consequently, the appellants have now come up to D this Court against that judgment of the High Court in this appeal by special leave.
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The High Court in its judgment held that the finding of fact recorded by the lower appellwte 'court that the mortgagees in the year 1895 did not get possession over cultivatory rights in this plot was decisive of the claim put forward ill' this case on behalf of the appellants. The Court was of the view that, not having obtained possession over the cultivatory rights, the appellants were not entitled to claim actual possession from the mortgagors, who had become occupancy tenants of this plot. We consider that this decision arrived at by the High Court is perfectly correct.
It is true that the two mortgages of the year 1895 were both usufructuary mortgages and they included mortgage of the 'sir' land. There was, however, no express mention in those mortgages that the mortgage was to operate in respect of the cultivatOf)' rights also in this 'sir' land. The mere mention of the 'sir' land as part of the property mortgaged can only be interpreted as laying down that the proprietary rights in the 'sir' land were the subject of 'the mortgages, so that the cultivatory rights continued to remain with the mortgagors. This circumstance is further borne . out by the finding of fact recorded that, even after the execution of <the ~sufructuary mortgages in 1895, the mortgagors contmued to cultivate this land and actual possession over this land for purposes of cultivating it was not obtained by the mortgagee. In these circumstances, it is cleat that the mortgagors must have become exproprietary occupancy tenants of this land in the year 1895.
[1969] i S.C.R.
274
SUPREME COURT REPORTS
Learned counsel appearing on behalf of the appellants put before us one provision of the C.P. and Berar Tenancy Act of 1883, which was then in force, to show that the rights of exproprictary tenant could only accrue if the proprietary rights in 'sir' land were transferred by sale and not if they were transferred by usufructuary mortgage. The whole of that Act was not plac~'d before us and, consequently we have been handicapped in our effort to determine what rights accrued to the mortgagors when the usufructuary mortgages were executed hy them, but possession over cultivatory rights in the 'sir' land was retained. In the circumstances, we considered it advisable to examine the position on the basis of both aHcrnatives. One alternative is that they became ex-proprietary occupancy tenants when the usufructuary mortgages were executed. The other alternative is that the righls of ex-proprietary tenants--<lid not accrue, but they did become tenants of the mortgagees in whom the proprietary rights vested because of the usufructuary mortgages. Even if the mortgagors became ordinary tenants in 1895 it is clear th":, by the time the Act came into force in the year 1920, they must have become occupancy tenants as defined in s. 10 of the Act. Section l 0 lays down that "Every tenant who is not an absolute occupancy tenant or a sub-tenant is an occupancy tenant." Clearly, the mortgagors were not sub-tenants nor is it the case of any party that they were absolute occupancy' tenants of this plot No. 1227. Consequently, they must be held to he occupancy tenants of this plot under the Act. Long before the year 1939, therefore, the mortgagors must be held to have become occupancy tenants of this land or ex-proprietary occupancy tenants of it. The claim of the appellants that they acquired righ1s to possession of this land on the basis of the mortgages of 1895, in these circumstances, must fail.
The alternative claim put forward on behalf of the appellan1s was that, under the decree passed on the basis of the award, and in the proceedings for insolvency of Ramachandrarao, tl1c rights in this land were acquired by the mortgagees 1hrough the proceedings taken by the courts. The claim was that the rights of Shankerrao passed to the mortgagees when the mortgagees purchased his righ·ts in execution of the decree in Civil Suit No. 12-A. of 1942 of the Court of Additional District Judge. Khandwa passed on the basis of the award given hy Sri Vipat. while the remaining 1 /3rd share of Ramachandrarao also passed to them wh.~n his rights were transferred by the Insolvency Court. This claim, clear!)', fails in view of the provisions of s. I 2 or s. 49 of the Act as they stood at the relevant time. Section 49 deals with the right of transfer of lands cultivated by an ex-proprietary occupancy tenant, while s. I 2 deals with the right of transfer of lands cultivated by an occupancy tenant. We need not go mto
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GOVARDHAN V. SITABAI (Bhargava, J.)
275
The decision of the revenue authorities was challenged on one other ground viz., that the jurisdiction to grant relief under s. 13 of the Act is confined to cases where one of the co-tenants claims possession on being illegally dispossessed and not in a case where the sole tenant has been dispossessed. It appears to us that this is immaterial, because relief from the same revenue H authority could be claimed by a sole tenant by an applicatior under s. 100 of the Act. The application filed by Sitabai for restoration of possession could, therefore, be treated as an appli-
[ 1969] I S.C.R.
276
St:PREME COURT REPORTS
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cation under s. I 00 of the Act in case she was the sole tenant, and the grant of relief to her was not without jurisdiction. In these circumstances. it is clear that the appellants are not entrtled to claim possession in this suit.
The appeals fail and are dismissed with costs. One hearing ~ Y.P. Appeals dismissed.
2 issues framed by the court
Whether the mortgagors acquired occupancy or ex-proprietary occupancy tenancy rights in the 'sir' land despite the usufructuary mortgages.
Whether the mortgagees could acquire cultivatory rights through execution of a decree on an award and through insolvency proceedings given sections 12 and 49 of the Central Provinces Tenancy Act.
6 provisions across 1 enactments
Govardhan Dass & 8 Ors.
Smt. Sitabai
J. C. Shah
V. Bhargava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
