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PETITIONER: RAM ADHAR SINGH (DEAD) THROUGH LRS. & ORS.

       Vs.

RESPONDENT: BANSI (DEAD) THROUGH LRS. & ORS.

DATE OF JUDGMENT06/03/1987

BENCH: SEN, A.P. (J) BENCH: 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 occupan- cy  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--Usu- fructuary mortage of occupancy holding--Impermissible.     U.P.  Debt Redemption Act, 1940--All usufructuary  mort- gages became self-liquidating mortgages.

HEADNOTE:     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 resist- ed  on the ground that the right of redemption stood  extin- guished 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 prede- cessors  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 posses- sion  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 trans- ferable.     The  appeal  to the Board of Revenue  having  been  dis- missed,  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

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Board of Revenue as well as the High Court failed to  appre- ciate that the usufructuary mortgage in question was execut- ed  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  ac- quired  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 occupan- cy 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.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 188 of 1974.     From the Judgment and Decree dated 25.8.72 of the  Alla- habad High Court in Special Appeal No. 223 of 1966. P.P. Juneja for the Appellant.     Mrs. Rani Chhabra and Mrs. Rachna Gupta for the Respond- ents. 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

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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  Commis- sioner,  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  transfera- ble.  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  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.

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We find that it has been the consistent view of the  Allaha- bad 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  usufructu- ary 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  mort- gage  there  is  no transfer of the right  of  an  occupancy tenant and consequently no suit for redemption was maintain- able  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  appel- lants, 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

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             appears  to me that he may be rightly  consid-               ered  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  put-               ting  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  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. For  these  reasons, the appeal must fail and  is  dismissed with costs. N.P.V.                                                Appeal dismissed. ?601