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PETITIONER: LILACHAND TULJARAM GUJAR AND OTHERS

       Vs.

RESPONDENT: MALLAPPA TUKARAM BORGAVI AND OTHERS

DATE OF JUDGMENT: 11/09/1959

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) HIDAYATULLAH, M. GUPTA, K.C. DAS

CITATION:  1960 AIR   85            1960 SCR  (1) 693

ACT: Occupancy,     relinquishment     of-Registered     occupant surrendering occupancy-Such surrender, if and when can  bind other occupants -Bombay Land Revenue Code, 1879 (Bom.  V  of 1879) s. 74.

HEADNOTE: The  suit out of which the present appeal arose was one  for redemption  of some occupancy lands, owned and mortgaged  by two  brothers, S and A, the Khata of the lands  standing  in the name of S as the registered occupant under s. 74 of  the Bombay  Land Revenue Code, 1879.  The mortgage, which was  a usufructuary one, was executed by S and A in 1888 in  favour of  the  predecessors-in-interest of the appellants.   By  a Rajinama  filed under s. 74 of the Code in 1900, S  made  an unconditional 88 694 surrender of the occupancy.  On the same day the  mortgagees by  a Kabuliyat prayed that the occupancy in  the  mortgaged property  might be granted to them.  Both the  Rajinama  and the  Kabuliyat  were  granted  by  the  Mamlatdar.   By  the Rajinama  S  did  not, however, purport  to  relinquish  the occupancy on behalf of A. After the death of S, A applied to the Mamlatdar for the cancellation of the transfer in favour of the mortgagees and registering the mortgaged property  in his  name.  That application was rejected.  The heirs of  S, claiming  also  to be the heirs of A, brought the  suit  for redemption.   The  defence of the appellants  was  that  the plaintiffs  were  not the heirs of A and that the  right  of redemption in the entire occupancy had been extinguished  by the  Rajinama.  The administrators of the estate of  A  were then added as defendants but were later on transposed to the category  of co-plaintiffs.  The courts below found  against the  appellants.  Hence this appeal by special  leave.   The question  for determination was whether the surrender  by  S amounted  to  a  relinquishment  of  the  entire   occupancy including the share of A. Held, that the Rajinama could in no way affect the right  of A to his share, in the occupancy and the right of redemption in respect of his share still subsisted.

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Under  s. 74 of the Bombay Land Revenue Code, 1879,  rightly construed,  the  registered  occupant  had  no  inherent  or independent right, in the absence of any authority,  express or  implied,  which  must be clearly  pleaded  and  strictly proved,  to give a notice of relinquishment so as to  affect the  interest  of  other occupants as  well.   Although  the section   conferred  certain  rights  and  imposed   certain obligations on the registered occupant, it was not  intended to take away the rights of other occupants. Lalchand  Sakharam  Marwadi v. Khendu Kedu Ugbade,  22  Bom. L.R. 1431, referred to. Held,  further, that even though A’s application to get  the mortgaged  property  registered his name had  failed,  there could  be  no  question  of  adverse  possession  since  the possession  of  the mortgagees had a lawful  origin  in  the usufructuary  mortgage.   Nor  could  a  mere  assertion  of adverse title affect the subsisting equity of redemption  or shorten the prescribed period of limitation for the suit. Khiarajmal v. Diam, I.L.R. 32 Cal. 296, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 24 of 1955. Appeal  by special leave from the judgment and decree  dated March 11, 1949, of the Bombay High Court, in Letters  Patent Appeal  No.  22  of 1945, arising out of  the  judgment  and decree  dated  August  3, 1944, of the said  High  Court  in Second Appeal No. 754 of 1942. 695 M. S. K. Sastri, for the appellants. Naunit Lal, for respondents. 1959.   September  11.   The  Judgment  of  the  Court   was delivered by DAS  C.  J.-This appeal by special leave has arisen  out  of Original  Suit  No. 582 of 1937 filed in the  Court  of  the Subordinate Judge of Chikodi by one Tukaram Shidappa Borgavi alias  Teli  (since deceased) and his son  Mallappa  Tukaram Borgavi  alis  Teli  (1st  respondent  herein)  against  the appellants for the redemption of certain mortgaged  property and possession thereof free from encumbrances and for  other ancillary reliefs.  The mortgaged property consists of R. S. No. 301   which  is Devasthan Inam Lands burdened  with  the obligation to supply oil for Nand Deep, i.e., keeping a lamp always  burning before Shri Tholaba Deity in the village  of Nipani.   The  said  property  originally  belonged  to  two brothers  Shiddappa  and Annappa.  The khata  of  the  land, however,  stood in the name of Shiddappa as  the  registered occupant  under s. 74 of the Bombay Land Revenue Code,  1879 (Bombay Act V of 1879). The  facts  material  for our present  purpose  may  now  be stated. On January 23, 1888, Shiddappa and  Annappa executed a  usufructuary  mortgage (Ex.D-51) in  favour  of  Lalchand Bhavanchand  Gujar  and Tuljaram Bhavanchand Gujar  for  Rs. 1,300 made up of Rs. 1,100 due under a previous mortgage and Rs. 200 presently advanced in cash.  That deed provided that the mortgage money would be repaid within a period of  three years  and that the mortgagors would pay the judi and  incur the  expenses  of the Nand Deep and that on failure  of  the mortgagors to meet the said out goings, the mortgagees would incur  the said expenses and add the same to their claim  on the mortgage.  On March 10, 1900, Shiddappa alone executed a simple  mortgage  (Ex.  D-52) for Rs. 600 in favour  of  the same  mortgagees.   A  part of the  consideration  for  this

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simple  mortgage  consisted of moneys borrowed by  both  the brothers  on  bonds executed by both of them.   This  simple mortgage deed provided 696 that the mortgagees would bear the expenses of the Nand Deep and  debit  the  same  to the  mortgagors  in  the  mortgage account.  On March 22, 1900, before the simple mortgage deed was  presented  for  registration,  Shidappa,  who  was  the registered  occupant,  gave a Rajinama under s.  74  of  the Bombay  Revenue  Code  recording his  desire  to  submit  an unconditional  surrender of the above mentioned khata of  R. S.  No. 307 from the end of the then current year.   On  the same  day,  the mortgagees by a Kabuliyat  prayed  that  the occupancy in the mortgaged property may be granted to  them. Both  the Rajinama and the Kabuliyat were sanctioned by  the Mamlatdar on May 5,1900.  Shiddappa having died, Annappa  in 1905  applied to the Mamlatdar alleging that  the  mortgaged property was Devasthan Inam and praying for the cancellation of the transfer in favour of the mortgagees and for  placing the  mortgaged property in his name.  This  application  was rejected.   In  1907 Shiddappa’s son Tukaram  (the  original first   plaintiff   herein)and  Annappa,  the   brother   of Shiddappa,  filed suits against the mortgagees for  accounts to  be  taken under the Deccan Agriculturists’  Relief  Act. That  suit  having  been dismissed,  they  appealed  to  the District  Court, Belgaum, but that appeal was  dismissed  on March  15, 1909.  Annappa again applied for the lands  being put  in  his  possession,  but  that  application  also  was rejected on August 4, 1910.  Thereafter, in 1911 Annappa and Tukaram,  the  brother and son  respectively  of  Shiddappa, filed  C.  S.  No.  362  of  1911  under  the  same   Deccan Agriculturists’ Relief Act for the same reliefs.  That  suit was also dismissed and the appeal there from met with a like fate  on  March 17,1914.  In 1922 Annappa died  without  any issue.   The  mortgagee  Lalchand  died  issueless  and  the mortgagee  Tuljaram  died  leaving  a  son  named  Lilachand Tuljaram   who  became  entitled  to  the  entire   mortgage securities.   On  November  1, 1937, Tukaram  and,  his  son Ganpat, alleging that they were the legal representatives of both  Shiddappa and Annappa, filed Original Suit No. 586  of 1937,   out  of  which  this  appeal  arises,  against   the appellants  Lilachand and his three sons for the  redemption of the mortgages.  In the 697 written statement the defendants-appellants pleaded that the deceased Shiddappa having sold the mortgaged property to the mortgagees, the equity of redemption became extinguished and that  as  Shiddappa alone was the registered  occupant,  the Rajinama  given  by him, was valid and binding  on  Annappa. They further alleged that the plaintiffs were not the  heirs of  the  deceased  Annappa, for the latter  had  died  after having transferred his interests in the mortgaged properties to  others.  It transpires that Annappa died in  1922  after having  made  and  published his  last  will  and  testament bequeathing his interest in the mortgaged properties to  one Krishna Kallappa, that Krishna Kallappa applied for  Letters of Administration in respect of Annappa’s estate and that in spite   of   the   opposition   of   Tukaram,   Letters   of Administration  with a copy of the will annexed was  granted to Krishna Kallappa.  Krishna Kallappa having died, his four sons were added as party defendants to this suit and then on their  own application they were transposed to the  category of plaintiffs. The trial Court held that the Rajinama executed by Shiddappa did  not  extinguish  the title of  the  mortgagors  in  the

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mortgaged property, that the plaintiffs were agriculturists, that they were bound to pay the amount also under the simple mortgage  and  that  on taking accounts  the  mortgages  had redeemed  themselves.  Accordingly the trial court passed  a decree for possession declaring that both the mortgages  had been satisfied.  The mortgagees, defendants 1 to 4, appealed to the District Court, Belgaum, in Regular Civil Appeal  No. 322 of 1940.  The District Court held that by the  Rajinama, Shiddappa  intended to convey the title in the suit land  to the mortgagees and hence Shiddappa’s heirs, the plaintiffs 1 and  2, could not claim redemption of Shiddappa’s  one  half share  in  the suit land.  As regards Annappa’s  share,  the learned  Judge held that the Rajinama had not the effect  of transferring  the interest of Annappa to the mortgagees  and that   inasmuch  as  the  mortgages  were  subsisting,   the defendants  could not acquire title by  adverse  possession. In  this view he allowed the appeal in part with the  result that 698 the suit was dismissed so far as the claims of plaintiffs  1 and 2 were concerned but the claims of plaintiffs 3 to 6  as the  legal representatives of Annappa were upheld  and  they were  allowed to redeem Annappa’s one half share of  and  in the mortgaged property on payment of one half of the amounts due under the two mortgages.  The mortgagee-defendants 1  to 4  appealed  to the High Court in Second Appeal No.  754  of 1942  against that part of the decree which  rejected  their claim  to  Annappa’s share and the plaintiffs 1 and  2  also filed  Second Appeal No. 1011 of 1942 against the  dismissal of their claim for redemption of one half share of Shiddappa in  the mortgaged property.  Both the appeals were  disposed of by a common judgment by Weston, J. The learned Judge held that,  so  far  as  Shiddappa’s  share  was  concerned,  the Rajinama was a complete relinquishment of his interest,  but as  regards  Annappa’s share, he agreed  with  the  District Judge’s  conclusion that Shiddappa could not bind  Annappa’s share  by  the Rajinama and in this view of  the  matter  he dismissed  both the appeals.  Against this decree  both  the parties preferred Letters Patent Appeals, namely, L.P.A. No. 22  of 1945 which was filed by defendants 1 to 4 and  L.P.A. No.  16 of 1945 which was filed by plaintiffs 1 and  2.  The Division  Bench  dismissed both the  appeals.   The  present plaintiff  No.  1, the son of Tukaram (the deceased  son  of Shiddappa who was the original plaintiff No. 1) has not come up  to  this  Court  and, therefore,  the  decision  of  the Division  Bench has become final so far as he is  concerned. The  High Court having refused to grant leave to  appeal  to this Court, the mortgagees defendants 1 to 4 applied to  and obtained from this Court special leave to appeal against the decision  of the Division Bench in so far as it  upheld  the rejection  of  their claims to Annappa’s half share  in  the mortgaged   property.   Hence  the  present   appeal.    The plaintiffs respondents, who are the legal representatives of Annappa  and  against whom the present appeal  is  directed, have not entered appearance in this appeal. Learned  advocate appearing in support of the  appeal  urges that the Rajinama and the Kabuliyat taken 699 together  evidenced a transfer of title from the  mortgagors to the mortgagees and, therefore, operated to extinguish the equity  of  redemption  not only of Shiddappa  but  also  of Annappa,  for  there is sufficient evidence on  record  that Shiddappa was the manager and karta of the joint family  and that  in the matter of passing the Rajinama he had acted  in that  capacity and, therefore, the Rajinama was  binding  on

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his  brother Annappa.  As pointed out by the Division  Bench in their judgment in the Letters Patent Appeal, this case of Shiddappa  having  acted as karta was nowhere  made  by  the defendants-appellants  in  their written statement  and,  in agreement with the High Court, we declined to allow  learned advocate  for  the appellants to make out such a  new  case. This  case being thus out of the way, learned  advocate  for the  appellants  urges that under s. 74 of the  Bombay  Land Revenue Code, as Shiddappa was the registered occupant,  the Rajinama filed by him operated upon the entire occupancy and amounted  to  a  relinquishment of the rights  of  both  the brothers  Shiddappa and Annappa.  Section 74 of  the  Bombay Land Revenue Act, as it stood at all material times, ran  as follows : "  An  occupant  may,  by  giving  written  notice  to   the Mamlatdar  or  Mahalkari, relinquish his  occupancy,  either absolutely or in favour of a specified person; provided that such  relinquishment applied to the entire occupancy  or  to whole  survey  numbers,  or  recognized  shares  of   Survey Numbers. An absolute relinquishment shall be deemed to to have effect from the close of the current year, and notice thereof  must be given before the 31st March in such year, or before  such other  date as may be from time to time prescribed  in  this behalf for each district by the Governor in Council. A relinquishment in favour of a specified person may be made at any time. When  there  are  more occupants than  one,  the  notice  of relinquishment must be given by the registered occupant; and the  person,  if  any,  in  whose  favour  an  occupancy  is relinquished, or, if such 700 occupancy  is  relinquished in favour of more  persons  than one,  the  principal  of such persons,  must  enter  into  a written agreement to become the registered occupant, and his name shall thereupon be substituted in the records for  that of the previous registered occupant." Reliance  is  placed  on the  concluding  paragraph  of  the section which provides that when a relinquishment is made in favour  of more persons than one the principal one  of  such persons  must enter into a written agreement to  become  the registered   occupant  and  his  name  shall  thereupon   be substituted  in  the  records  for  that  of  the   previous registered  occupant.  This provision, it is said, makes  it clear that so far as the revenue authorities are  concerned, it  is  the registered occupant who  represents  the  entire occupancy  and  the fact that the notice  of  relinquishment must, under the section, be given by the registered occupant also supports the contention that the Rajinama passed by the registered occupant binds all the occupants.  We are  unable to   accept  this  argument  as  correct.   The   concluding paragraph   of  the  section  clearly  recognises   that   a relinquishment  may be in favour of more persons  than  one. It is true that the principal one of such persons must enter into a written agreement to become the registered  occupant. This is for facilitating the purpose of the Code but it does not  mean  that  the  other  persons  in  whose  favour  the occupancy  is  relinquished cease to have any  right.   That their  right as occupants remains is clearly  recognised  by the opening paragraph of the section which gives an occupant a right to relinquish his occupancy either absolutely or  in favour  of a specified person.  This right is given  to  all occupants,  if  there are more than one,  for  the  singular includes  the plural.  It is true that where there are  more occupants  than one, the notice of relinquishment on  behalf

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of  any occupant must be given by the  registered  occupant. That does not mean, in the absence of any specific  pleading and  cogent proof, that a notice of relinquishment given  by the  registered  occupant must necessarily be  a  notice  on behalf  of  all occupants or any particular  occupant  other than the 701 registered occupant, or that the registered occupant has the right  to give such a notice without reference to the  other occupants  so as to effect their interest in the  occupancy. Turning to the Rajinama, it is clear that Shiddappa did  not purport  to file, the same on behalf of Annappa nor  had  he any  right  to  do  so; by reason  only  of  his  being  the registered occupant.  In Lalchand Sakharam Marwadi v. Khendu Kedu Ughade (1) one out of four brother mortgagors, who  was the  registered  occupant  of the mortgage  land,  passed  a Rajinama  of  the  land  in favour  of  the  mortgagee,  who executed  a  Kabuliyat for the same.   The  remaining  three mortgagors  sued  to redeem the mortgage alleging  that  the Rajinama passed by their brother conveyed only his  interest and  nothing  more.  It was held that though  the  conveying brother  was a co-mortgagor with the plaintiffs, he  had  no right to sell their interest in the equity of redemption and that,  so far’ as they, were concerned, he was in  the  same position  as  an  outsider.  It is  true  that  no  specific reference  was made in the judgment to s. 74 of  the  Bombay Land Revenue Code, but the actual decision in that case, the facts  of  which are very similar to those  of  the  instant case,  quite clearly indicates the court’s understanding  of the  law applicable to those facts and that law was  nothing but the provisions of s. 74 of the Code.  In our opinion, on a  correct  interpretation of s. 74, where  there  are  more occupants  than  one in respect of the same  occupancy  each occupant has his own rights and the fact of registration  of one  of  them  as  the  registered  occupant  attracts   the operation of the Code and confers certain rights or  imposes certain obligations on the registered occupant as laid  down in  the  Code  but does not take away the  rights  of  other occupants.   It is true that if any of the  occupants  other than  the  registered  occupant desires  to  relinquish  his occupancy. he cannot himself give a notice of relinquishment but  must  give it by and through  the  registered  occupant Nevertheless the registered occupant, in the absence of  any authority,  express  or implied, to be clearly  pleaded  and strictly proved, has no inherent or independent (1)  22 Bom L.R. 1431, 89 702 right to give any such notice so as to affect the  interests of the other occupants.  In our opinion the Rajinama  passed by  Shiddappa  did not affect the right of Annappa  and  his equity  of redemption subsisted at all material  times.   In our  judgment  the conclusion of the Division Bench  of  the High Court in the Letters Patent Appeals was correct and the principal contention urged before us must be repelled. Learned  Advocate for the appellant then faintly urges  that Annappa’s  interest  in  the property  was  extinguished  by reason of the adverse possession exercised by the mortgagees Since at least 1905 when the claim of the Annappa to get the mortgaged property registered in his name failed.  It should be  remembered that the mortgagees came into  possession  of the   property  pursuant  to  the   usufructuary   mortgage. Therefore  their  possession had a lawful  origin.   A  mere assertion of an adverse title on the part of the  appellants cannot  affect  the subsisting equity of redemption  of  the

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mortgagors  or operate to shorten the period  of  limitation prescribed  for  a  suit for redemption.   In  view  of  the observation of the Judicial Committee in Khiarajmal v.  Daim (1),  the  learned  advocate  for  the  appellants  did  not seriously press the point of limitation any further. No  other point having been urged before us in this  appeal, the appeal must, for reasons stated above, be dismissed.  As the respondents did not appear, there will be no order as to costs. Appeal dismissed. (1) (1904) L. R. 32 Ind.  App. 23. 703