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PETITIONER: GOVARDHAN DASS & 8 ORS.

       Vs.

RESPONDENT: SMT.  SITABAI

DATE OF JUDGMENT: 03/05/1968

BENCH:

ACT: Central  Provinces and Berar Tenancy  Act, 1883-Mortgage  or ’Sir’   lands-Whether   cultivating  rights  given   up   by mortgagors-Acquisition of occupancy rights under ss. 12  and 13. Central Provinces Tenancy Act (1 of 1922), ss, 12 and 13, 49 and   50-Acquisition   of  tenancy  rights   by   mortgagors thereunder-Effect of purchase by mortgagee of the mortgagors rights in insolvency proceeding.

HEADNOTE: The  predecessors-in-interest  of  the  respondent  executed usufrutory   mortgage  deeds  in  1898  in  favour  of   the predecessors-in-interest  of  the appellants in  respect  of certain  ’sir’ land.  In 1940 one of the mortgagors, R,  the husband of respondent, was declared insolvent and his  share in  the  proprietary rights which vested in  the  Insolvency Court  was purchased by the mortgagee.  Some disputes  arose about  the  amount  and the right of  redemption  under  the mortgage  between the mortgagee and the other  mortgagor  S, the  matter was referred to arbitration.  In  -pursuance  of the decree in this award, the mortgagee purchased the  share of ’S’ including his rights in ’sir’.  R died, and when  his widow  the  Respondent  was dispossessed from  the  land  in pursuance  of  the mortgage decree passed in  terms  of  the award,  she filed an application to the Revenue Court  under s.  12  and s. 13 of the Central Provinces Tenancy  Act  for restoration  of  possession of her occupancy rights  in  the land, which was allowed.  Thereupon the appellants filed the suit  claiming possession, which was partly  allowed.   Both the parties appealed and in appeals the suit was  dismissed, which in further appeals, was upheld by the High Court. HELD : The appellants were not entitled to claim  possession in this suit. 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 subject  of  the mortgages, so the cultivator rights continued to remain with the  mortgagors.  The circumstance was further borne out  by 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  for  the purposes   of  cultivating  it  was  not  obtained  by   the mortgagee.   In  the circumstances, it was  clear  that  the mortgagors must have become ex-proprietary occupancy tenants of this land in the year 1895. [273 G. H] Even  if the mortgagors become ordinary tenants in 1895,  it was  clear that by the time the Act came into force  in  the year  1920,  they  must have  become  occupancy  tenants  as

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defined in s. 10 of the Act.  So the claim of the appellants that they acquired rights to possession of this land on  the basis of the mortgages in 1895, in these circumstances, must fail. [274 D] The  appellants’ claim that the rights of S passed  to  them when  they purchased his rights in execution of  the  decree under the award and that the share of R passed to them  when his  rights were transferred by the insolvency Court,  fails in view of the provisions of s. 12 or s. 49 of the 271 Act,  as they then stood.  As a result of these  provisions, the rights of the ex-proprietory occupancy tenant could  not have been transferred in favour of the mortgagees.   Section 50,  as it was at that time, did permit transfer of  certain rights  of  an ex-proprietory occupancy tenant; but,  to  be valid such transfers required permission of the  appropriate revenue  authority.   In this case, there is  no  suggestion that,  when  transfers were obtained by  the  mortgagees  in pursuance of the decree in the award and in pursuance of the insolvency  proceedings against R, the  transfers  purported to.  be  affected  were  made with  the  permission  of  the appropriate  authority.   Consequently  under  s.  49  those transfers would be void. [274 H-275 C] 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 survivor 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  covenants claims possession 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 jurisdiction. [275 H]

JUDGMENT: 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. H.   R. Gokhale, S. T. Khirwadkar and I. N. Shroff, for  the appellants. R.   S.  Dabir,  O. P. Malhotra, P. C. Bhartari -and  J.  B. Dadachanji for the respondent. The Judgment of the Court was delivered by Bhargava, J. The appellants brought a suit against the  res- pondent  for possession of a plot Kharsa No. 1227 having  an area  of 58.35 acres of Monza Shahpur, Tehsil  Burhanpur  in November,  1950 on the ground that they had been  unlawfully dispossessed  from this land.  This land formed part of  the property  of one Laxmanrao who had two sons  Vishwasrao  and

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Krishnarao.  Krishnarao had two sons Dinkerrao and  Shamrao. Shamrao  was  adopted by Vishwasrao in the year  1895.   The rights in certain village properties, including ’Sir’ lands, vested  in this joint family consisting of  Vishwasrao,  his adopted son Shamrao, and 272 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  ’Malguzari  Mouzas and  Sir  land  of  Tehsil Burhanpur  District  Nimar’,  and  ’Maufi  Government  land’ situate  in  certain villages in  Pargana  Jainabad,  Tehsil Burhanpur.    The   mortgages   were  in   favour   of   the predecessors-in-title of the appellants.  In the year  1928, there  was  a  partition in the joint 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 adopted by Shamrao.  The parties to the partition were, therefore,   Shankerrao,   the  adopted   son   of   Shamrao Ramachandrarao   and   Wamanrao  the  sons   of   Dinkerrao. Shankerrao   received  1  share  in  the   property,   while Ramachandrarao  and  Wamanrao received 1/4 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  property remaining   joint   with  Shankerrao   and   Ramachandrarao, Shankerrao  had  2/3rd share.and  Ramachandrarao  had  1/3rd share, because, originally, before partition Shankerrao  was entitled to 1/2 share and Wamanrao to 1 share. 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  Insolvency 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 this 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  the mortgagee,  and this dispute was referred to an  arbitrator, Sri  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 that decree,  Shankerrao’s  2/3rd share, including his rights in the ’sir’ plot No. 1227,  was purchased by the mortagee.  In 1940, Ramachandrarao had died and  his  ex-proprietary occupancy rights in that  plot  No. 1227  had  vested in his widow, Sitabai, the  respondent  in these appeals.  In 1942,when she was dispossessed from  this plot No. 1227 in pursuance of the mortgage 273 decree   passed  in  terms  of  the  award,  she  filed   an application to the Revenue Court under sections 12 and 13 of the  Central  Provinces Tenancy Act 1 of  1920  (hereinafter referred  to as "the Act") for restoration 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 appellants  filed  the  suit

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claiming  possession of this plot as mentioned  above.   The suit  was partially decreed by the trial Court  granting  to the appellants the right to joint possession with Sitabai on the  basis  that  they had 1/3rd share in  the  plot,  while Sitabai  continued  to be entitled to  the  remaining  2/3rd share.   Both  parties  filed appeals to the  Court  of  the District   Judge,  Khandwa.   The  lower   appellate   Court dismissed  the  appeal of the appellants in respect  of  the 2/3rd  share  in  this  plot  No.  1227,  and  allowed   the respondent’s  appeal  in respect of the 1/3rd share  of  the same  plot,  with  the result 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 this  Court  against  that judgment of the High Court in this appeal by special leave. The High Court in its judgment held that the finding of fact recorded by the lower appellate 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 in  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 cultivatory  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 usufructuary mortgages in 1895, the mortgagors continued to cultivate this land and actual possession over this  land for purposes of cultivating it was not obtained by the mort- gagee.   In  these  circumstances,  it  is  clear  that  the mortgagors must have become ex-proprietary occupancy tenants of this land in the year 1895. 274 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 ex-proprietary  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 placed 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  by  them, but  possession  over  cultivatory rights  in  the  ’sir’  land  was  retained.   In  the  cir- cumstances,  we  considered  it  advisable  to  examine  the position on the basis of both alternatives.  One alternative is  that they became ex-proprietary occupancy  tenants  when the   usufructuary  mortgages  were  executed.   The   other alternative   is   that   the   rights   of   ex-proprietary tenants--did 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 that, by the time  the Act came into force in the year 1920, they must have  become

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occupancy  tenants as defined in s. 10 of the Act.   Section 10  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 be  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 rights 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 appellants was that, under the decree passed on the basis of the  award,  and  in  the  proceedings  for  insolvency   of Ramachandrarao, the rights in this land were acquired by the mortgagees through the proceedings taken by the courts.  The claim  was  that  the rights of  Shankerrao  passed  to  the mortgagees  when  the  mortgagees purchased  his  rights  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 by  Sri  Vipat,  while  the remaining 1/3rd share of Ramachandrarao also passed to  them when  his rights were transferred by the  Insolvency  Court. This  claim, clearly, fails in view of the provisions of  s. 12  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. 12  deals with the right of transfer of lands cultivated  by an occupancy tenant.  We need not go into 275 the question whether the expression "occupancy tenant" in s. 12  does  or does not include  an  ex-proprietary  occupancy tenant.   If it be held that the mortgagees had  become  ex- proprietary  occupancy  tenants  of the land in  1895  as  a result  of  the  execution of  usufructuary  mortgages,  the provisions  of  s.  49 would apply.  As a  result  of  those provisions,  the  rights  of  the  ex-proprietary  occupancy tenant  could  not have been transferred in  favour  of  the mortgagees.  Section 50, as it was at that time, did  permit transfer  of certain rights of an  ex-proprietary  occupancy tenant; but, to be valid, such transfers required permission of  the appropriate revenue authority.  In this case,  there is  no suggestion that, when transfers were obtained by  the mortgagees  in pursuance of the decree in Suit No.  12-A  of 1942 and in pursuance of the insolvency proceedings  against Ramachandrarao, the transfers purported to be effected  were made  with  the  permission of  the  appropriate  authority. Consequently, under s. 49, those transfers would be void. Taking   the  case  of  the  second  alternative  that   the mortgagors  did not become ex-proprietary occupancy  tenants in 1895 and were occupancy tenants simpliciter when the  Act came  into force, the transfers in favour of the  mortgagees under  the decree in Civil Suit No. 12-A of 1942 and in  the insolvency proceedings would be in contravention of s. 12 of the  Act.   It  appears that  the  revenue  authorities,  in restoring   possession   to  Sitabai  on   her   application purporting  to be under s. 13 of the Act, proceeded  on  the basis  of  this second alternative that the  rights  of  the mortgagors were governed by s. 12 of the Act.  We are unable to  hold that, in this proceeding, the  revenue  authorities committed any error.  Section 12 barred the transfer of  the cultivatory  rights of an occupancy tenant in  execution  of the  decree of a civil court or in  insolvency  proceedings.

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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 survivor to  those  rights,  was rightly restored to possession by the revenue authorities. 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  authority  could  be claimed  by a sole tenant by an application under s. 100  of the  Act.  The application filed by Sitabai for  restoration of possession could, therefore, be treated as an appli- 276 cation  under  s. 100 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 entitled to claim  possession  in  this suit. The appeals fail and are dismissed with costs.  One hearing fee. Y.P.                                                 Appeals dismissed. 277