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PETITIONER: PRATAP CHAND

       Vs.

RESPONDENT: RAM NARAYAN AND ANOTHER.

DATE OF JUDGMENT: 22/02/1961

BENCH:

ACT: Mortgage-Entire proprietary rights mortgaged-Sir lands  -not mentioned-If  included  in the mortgage-Other lands  of  the mortgagor  coming into mortgagee’s possession, if  accession to the mortgage -Transfer of Property Act, 1882 (4 of 1882), S. 70.

HEADNOTE: One  Ramchandar  executed  a simple  mortgage  deed  without possession of his share in the property in dispute in favour of the respondents and others the relevant Portion of  which ran thus :" I  do  hereby mortgage without possession half  share,  five annas  and four pies, area 678-31 acres, jama -  sarkar  Rs. 326/10/8  together with Khudkashat, chbotaghas, big  shrubs, abadi, gair abadi, cultivated and that lying vacant, and the rights  and  privileges  appertaining  to  water,   forests, chahat,  gardens,  and right of cultivation,  malguzari  and trees  of every kind whether giving fruits or no fruits  and prohibited  and  unprohibited wood with  entire  rights  and privileges appertaining to the ’village." After  the  mortgage  Ramchandar’s share  was  sold  to  the appellants and certain other lands recorded in  Ramchandar’s mother’s   name  also  came  into  the  possession  of   the appellant. The  main  questions arising for decision were  whether  the mortgage included the sir land of Ramchandar and whether the other lands coming into the possession of the appellant were accession to the mortgage. Held,  that as the mortgage deed stood it was a mortgage  of all  the proprietary rights in the mortgagor’s share in  the property   including  the  proprietary  right  in  the   sir pertaining to that share. As the mortgage was without possession the mortgagor was not losing  possession of his sir and it was not  necessary  for him  to  make  an application under s.  50  of  the  Central Provinces Tenancy Act relating to the reservation of a right of  occupancy.  Sections 49 and 50 come into play  when  the proprietor  making a transfer loses his right to occupy  any portion of his sir land temporarily or permanently. Although in the plaint of the suit-based on the mortgage  no mention  was  made of sir, the entire proprietary  right  in sir, khudkashat etc. relating to the mortgagor’s share would be sold on a decree passed in the suit.  The words " all rights pertaining to the share "  appearing in  the  sale  certificate following the  execution  of  the decree  in  the  mortgage  suit  passed  in  favour  of  the respondents would include the mortgagor’s proprietary rights in   the  sir  land  and  the  respondents  by  their   sale

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certificate would get a right ’in the sir land also. 914 As  the  appellant had purchased the entire  share  of  Ram- chandar  who  was  later  ejected  from  his  ex-proprietary tenancy  which came into the possession of the appellant  as lambardar his sir land which thus came into the  appellant’s possession  while  the  mortgage was  subsisting  became  an accession  to  the mortgage under s. 70 Of the  Transfer  of Property Act and the mortgagees were entitled to half  share in the lands which came into the appellant’s possession.  The  lands recorded nominally in the name  of  Ramchandar’s mother  but  in the actual possession of the  former  having also came into the possession of the appellant as  lambardar were held by him for the entire body of proprietors and  the respondent  would  be  entitled to a  share  in  them.   The respondent’s claim to those lands were not barred by 0.  II, r. 2 of the Code of Civil Procedure merely because they were not mentioned in the plaint of the mortgage suit. Hazarilal  v.  Hazarimal,  A.I.R. 1923  Nag.  130  and  Seth Manakchand v. Chaube Manohar Lal, A. I.R. 1944 P.C. 46, held not applicable.

JUDGMENT: CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 272 of 1956. Appeal from the judgment and decree dated June 28, 1954,  of the  former  Nagpur High Court, in First Appeal No.  107  of 1946. M.   C.  Setalvad,  Attorney-General for  India,  Purshottam Trikamdas,  S.  T.  Khirwadkar  and I.  N.  Shroff  for  the appellant. Achhru   Ram,  A.  R.  Chaubey  and  Naunit  Lal   for   the respondents. 1961.  February 22.  The Judgment of the Court was delivered by WANCHOO,  J.-This is an appeal on a certificate  granted  by the  Nagpur  High  Court.  The  brief  facts  necessary  for present  purposes are these.  One Ramchandar Jat  originally owned  Annas -10/8 share in Mauza Tamalawadi while the  rest belonged  to others.  Ramchandar executed a simple  mortgage deed on July 27, 1920, in favour of Seth Ram Jiwan and  two. minors   Ram  Narain  and  Radhey  Sham.   The   plaintiffs. respondents  are the representatives of the mortgagees.   On August  27, 1926, the defendant-appellant  -purchased  Annas -/5/4  share  belonging to the other share  holders  in  the village.  Thereafter, the appellant brought a 915 suit against Ramchandar who was lambardar of the village for profits,  in which 9, decree was passed against  Ramchandar. In  execution  of that decree the  appellant  purchased  the entire Annas -/10/8 share of Ramchandar in the village about the  year  1932.  In consequence, the appellant  became  the owner  of the entire village subject to the mortgage of  the respondents on Annas -/5/4 share therein.  On July 27, 1932, the  respondents  sued  Ramchandar on  the  basis  of  their mortgage-deed  and a preliminary decree for sale was  passed in  March,  1937.   To this suit the appellant  was  also  a party.   The  preliminary  decree was followed  by  a  final decree  and thereafter the property was put to sale and  was purchased  by the respondents on March 1, 1940.   This  sale was confirmed on April 12, 1940, and a sale certificate  was granted  to  the  respondents.   So by  the  year  1940  the respondents  were  the owners of Annas -/5/4  share  in  the village  while the appellant was the owner of  Annas  -/10/8

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share.  The appellant was also a lambardar. Ramchandar Jat held sir land in certain khasras with a total area of 252-49 acres.  On the sale of Ramchandar’s share  to the appellant, Ramchandar became an ex-proprietary tenant of his  sir land.  Thereafter Ramchandar was ejected  from  his exproprietary  tenancy sometime in 1936 and the  lands  came into possession of the appellant.  There were certain  other lands which were nominally recorded as Muafi Khairati in the name  of  Ramchandar’s  mother  but  were  actually  in  the possession  of Ramchandar.  It appears that  Ramchandar  was ejected  from  these  lands also and  they  came  into,  the possession  of  the appellant.  Further the appellant  as  a lambardar  came  into possession of certain other  lands  by surrender or otherwise. The  respondents filed a suit for partition before the  Sub- Divisional  Officer,  Hard&,  in 1942.  In  that  suit  they claimed half share in the lands of Ramchandar and his mother which came into. the possession of the appellant.  They also claimed   a  share  in  other  lands  which  came   into-the possession  of the appellant as lambardar.  Their  case  was that these lands were 916 accession  to the mortgage in their favour and they  were  - therefore  entitled to a proper share in them’.  This  claim was  resisted  by the appellant  before  the  Sub-Divisional Officer.   On October 20, 1943, the  Sub-Divisional  Officer passed  an order which in effect rejected the contention  of the respondents and accepted the plea of the appellant. Thereupon  the  respondents  filed the present  suit  for  a declaration  in the civil court in 1944 claiming  that  they were  entitled  to  a  proportionate  share  in  the   lands specified  in  the  plaint.  The suit was  resisted  by  the appellant  and his contention was that the  respondents  had purchased specific khudkashat and chhotaghas plots and  that they therefore could not be allowed anything more than  what was  mentioned in the decree and the sale certificate  which were  the basis of their title.  As the specific lands  with respect  to which the respondents claimed a  declaration  in this  suit were not mentioned in the sale certificate,  they were  not entitled to any share in them.  A large number  of issues were framed by the trial court, which decreed a  part of  the claim put forward by the respondents  but  dismissed the  rest.  Consequently, the respondents went up in  appeal to  the  High Court.  The appeal was allowed so far  as  the respondents’  claim to one-half share in the sir plots  held by  Ramchandar  was concerned.  Further, they  were  allowed one-third  share  in  the  lands  held  by  the  mother   of Ramchandar  and also in certain other lands which came  into the  possession  of the appellant as  lambardar  subject  to payment  of  certain  amounts.   This  was  followed  by  an application  by  the appellant for leave to appeal  to  this Court and a certificate was granted by the High Court.  That is how the matter has come up before us. The  main contention of the appellant before us is that  the mortgage  deed of 1920 -which is the basis of the  title  of the  respondents  did  not  include the  sir  plots  in  the possession  of,  Ramchandar nor the  plots  of  Ramchandar’s mother.  Nor were these plots included in the suit which was brought  by  the respondents on the basis of  the  mortgage- deed.   Further, the sale certificate also did  not  include these plots, though 917 some  other  plots were mentioned therein.   Therefore,  the respondents were not entitled to these plots as accession to the mortgage.

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This brings us to a consideration of the mortgage in  favour of the respondents.  The mortgage was without possession and the property mortgaged was mentioned in these terms:               " I do hereby mortgage without possession half               share  -/5/4, five annas and four  pies,  area               678.31   acres,   jama-sarkar   Rs.   326/10/8               together  with  khudkashat,  chhotaghas,   big               shrubs, abadi, gair abadi, cultivated and that               lying  vacant, and the rights  and  privileges               appertaining   to  water,   forests,   chahat,               gardens,  and right of cultivation,  malguzari               and trees of every kind whether giving  fruits               or  no fruits and prohibited and  unprohibited               wood   with   entire  rights   and   prvileges               appertaining to the village." It will be seen that what was mortgaged was the entire  half share  of Ramchandar in -/10/8 share which he owned  in  the village.   It is true that the mortgage goes on to  describe certain  other things but that in our opinion is  merely  by way of precaution, for even if the part underlined* was  not there in the mortgage, the respondents being the  mortgagees of -/5/4 share would be entitled to everything contained  in that share.  The underlined* part of the mortgage  therefore does not cut down the amplitude of the mortgage with respect to the entire -/5/4 share out of -/10/8 share of Ramchandar. It  is  true that sir is not specifically mentioned  in  the mortgage  but as the mortgage was of the entire -/5/4  share out  of  -/10/8  share it will include (unless  there  is  a specific  exclusion of sir) the area of sir also  pertaining to  the share mortgaged.  In this connection  our  attention was  drawn  to as. 68 and 69 of the Central  Provinces  Land Revenue  Act,  No.  11 of 1917, which was in  force  at  the relevant time.  Section 68 deals with sir land and s. 69 wit khudkashat.   Sir is defined in s. 2 (17) and khudkashat  is defined  in  s. 2 (5) as " that part of the home-farm  of  a mahal  which  is cultivated by the -proprietor as  such  and which is not sir land.  " Thus though sir land may be a part of the home-farm it is a different entity Here printed in italics. 918 from khudkashat land.  Reference was also made to ss. 49 and 50  of  the  Central Provinces Tenancy Act, No.  1  of  1920 (hereinafter  called  the  Tenancy  Act)  which  deal   with transfer  of  sir land.  Under s. 49 (1)  a  proprietor  who temporarily  or permanently loses whether under a decree  or order of a civil court or by transfer or otherwise his right to occupy any portion of his sir land as a proprietor  shall at the date of such loss, become an occupancy. tenant except where he has obtained a sanction under s. 50 of the  Tenancy Act.  Further under s. 49 (2) there is a prohibition on  the registration of documents which purport to transfer all  the rights  of a proprietor in big sir land without  reservation of  the  right of tenancy specified in sub-s.  (1).   It  is urged for the appellant that the reason why sir land was not mentioned  in the mortgage deed of 1920 was  that  otherwise sanction  of  the Revenue Officer would have  been  required under s. 50 of the Tenancy Act.  Now s. 50 provides that  if a  proprietor desires to transfer the proprietary rights  in any  part  of  his sir without reservation  of  a  right  of occupancy specified in s. 49(1) he may apply to the  Revenue Officer  and if such Revenue Officer is satisfied  that  the transferor is not wholly or mainly an agriculturist or  that the  property is self-acquired or has been -acquired  within the  twenty  years  last preceding, he  shall  sanction  the transfer.  Sections 49 and 50 in our opinion only come  into

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play  when the proprietor making a transfer loses his  right to  occupy  any  portion  of his  sir  land  temporarily  or permanently and sanction has to be obtained under s. 50 only where the transfer is to be made without reservation of  the right  of  occupancy.  But the mortgage in this  case  is  a simple  mortgage  and there was no  transfer  of  possession under  it.  Therefore the proprietor Ramchandar  never  lost his right to occupy his sir land by this mortgage and  there was  therefore no necessity for him to make any  reservation in that respect or to apply for sanction under s. 50, for he was not losing the right to occupy his sir at all.  But that does  not  mean that when he mortgaged his entire  share  of -/5/4  out  of  -/10/8 share,, he  was  excluding  from  the mortgage the area of sir 919 corresponding to the share mortgaged.  As the mortgage  deed of  1920  stands, it is a mortgage of  all  the  proprietary rights in -/5/4 share including the proprietary right in the sir pertaining to that share ; but as the proprietor was not losing his right to occupy the sir land, the mortgage  being without possession, it was not necessary for him to make any application  under  s.  50  of  the  Tenancy  Act.   We  are therefore   of  opinion  that  the  appellant  cannot   take advantage   in  the  circumstances  of  the  fact  that   no application  was  made under s. 50 of the  Tenancy  Act  and therefore  there was no effect of this mortgage on  the  sir rights.   As we read the mortagage it clearly  affected  the sir  Tight  also pertaining to -/5/4 share and  it  was  not necessary to make an application under s. 50 of the  Tenancy Act, for the mortgagor was not losing possession of his  sir and there would be no question of any ex-proprietary tenancy arising in his favour, to relinquish which he would have  to apply under s. 50. Turning now to the plaint in the mortgage suit we find  that the property subject to the mortgage is mentioned in para. 2 thereof  inexactly the same terms as in the  mortgage  deed. In para. 13 it is again recited that the mortgagor mortgaged -/5/4 share out of his -/10/8 share.  Paragraph 13 then goes on  to say that on the date of the mortgage,  the  mortgagor had  certain  khudkashat  and  chhotaghas  lands  and   both cultivating  and  proprietary rights in them  pertaining  to half share only were liable to be sold.  No mention was made of  sir in this paragraph.  But that in our opinion was  not necessary,  for  the mortgage included the mortgage  of  sir land   also  pertaining  to  -/5/4  share   though   without possession.   The  prayer in the suit was for  sale  of  the mortgaged property together with khudkashat, etc.; but  this again  was a mere matter of precaution, for in any case  the entire proprietary right in sir, khudkashat, etc.,  relating to  -/5/4 share would be sold on a decree following  on  the mortgage. Then  coming  to  the  sale  certificate  we  find  that  it certifies that the respondents had purchased -/5/4 share  in the  village  with  abadi, khudkashat,  chhotaghas  and  all rights pertaining to the ’share.  It is true that 920 khudkashat and chhotaghas are specifically mentioned in  the sale  certificate but the words " all rights  pertaining  to the share " appearing in the sale certificate would  include such  proprietary rights in the sir land as belonged to  the share mentioned in the sale certificate.  We are, therefore, of  opinion.  that  so far as sir  land  is  concerned,  the proprietary  right  in  it pertaining  to  -/5/4  share  was mortgaged and the respondents by their sale certificate  got a right in the sir land also.

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Now  what happened after the mortgage deed in favour of  the respondents  was  that the appellant  purchased  the  entire -/10/8  share of Ramchandar subject to the mortgage  of  the respondents in 1932.  At that time Ramchandar became an  ex- proprietary tenant of his entire sir relating to this  share under  s.  49 of the Tenancy Act.  In  1936  Ramchandar  was ejected  from the ex-proprietary tenancy which came  in  the possession of the appellant as lambardar and has  apparently since  then  remained in his possession.  The  case  of  the respondents  is that in 1936 their mortgage  was  subsisting and the sir land which thus came into the possession of  the appellant  on the extinction of the  ex-proprietary  tenancy became an accession to the mortgage and, therefore, they  as mortgagees  were entitled to half share in the  lands  which thus  came  into the possession of the appellant.   We  have already pointed out that the mortgage covered the sir  plots also  so  for  as  the  proprietary  rights  in  them   were concerned.   Therefore,  when  Ramchandar’s   ex-proprietary rights came to an end and the land came into the  possession of  the appellant and became khudkashat, the mortgage  would cover this khudkashat land to the extent of the  mortgagees’ share  therein.   It  is,  true  that  if  Ramchandar’s  ex- proprietary tenancy had continued, the mortgagee would  have no  right  to  ask for half share in it; but  when  the  ex- proprietary  tenancy was extinguished and this land came  in the  possession  of  the  lambardar  mortgagor  it,  was  an accession  to  the mortgage under s. 70 of  the  Transfer,of Property Act and the mortgagees could claim a share in  it., It was however urged that accession to be available to 921 the  mortgage must be a legal accession.  We however see  no illegality in the accession which took place.  There is also no doubt that the accession took place when the mortgage was still  subsisting.  Therefore, we agree with the High  Court that  on the ex-proprietary tenancy being extinguished,  the sir   land  which  Would  otherwise-have  remained  in   the exclusive  possession  of Ramchandar  as  an  ex-proprietary tenant became an accession to the mortgaged property and the respondents  would  be  entitled  to half  of  it  on  their purchasing the /5/4 share in execution of the decree on  the mortgage.   The  fact  that the rent  of  an  ex-proprietary tenant  is due to the person whose ex-proprietary tenant  he becomes  by virtue of the sale or mortgage  with  possession would  make  no difference after ex-proprietary  tenancy  is extinguished,  for on such extinction the land would  go  to the  entire proprietary body and would thus in this case  be an  accession  to the mortgage to the extent  of  the  share mortgaged. This  brings  us to the lands in the  name  of  Ramchandar’s mother.    It  appears  that  these  lands  came  into   the possession  of Ramchandar after the mortgage but before  the institution  of  the  mortgage suit.   They  were  nominally recorded  in  the name of his mother and in 1932  after  his entire share was purchased by the appellant lie was recorded as an occupancy tenant of these lands.  Later the  appellant came into possession of them apparently as a lambardar.   It is  not clear when and how the appellant got  possession  of them.  There can be no doubt however that his possession was for the entire body of proprietors and the respondents would be  entitled to a share in them.  But it was urged that  the claim of the respondents to these lands was barred by 0. 11, r.  2 of the Code of Civil Procedure, because they were  not specified in the plaint based on the mortgage deed of  1920. Reliance  in  this  connection is  placed  on  Hazarilal  v. Hazarimal (1) and Seth Manakchand v. Chaube Manoharlal  (2).

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These  cases in our opinion do not apply, because  they  are cases of foreclosure while in (1) A. I. R. 1923 Nag. 130, (2) A.I.R. 1944 P.C 46, 922 the  present case the respondents’ suit was for sale of  the share  mortgaged  with them.  Further in  the  plaint,  when specifying the khudkashat plots it wag made clear that  they were khudkashat on the date of the mortgage; the respondents thus did not specify the khudkashat plots on the date of the plaint.  Though they had specified some plots in the  plaint which were mentioned in the sale certificate also, the  suit "-as  for the sale of the entire /5/4 share and  that  would include khudkashat lands pertaining to the share existing at the time when the suit was filed.  It is not necessary in  a suit for sale to specify the lands in the possession of  the mortgagor  specifically  and they would pass on  sale  along with  the  share sold.  The claim, therefore, would  not  be barred  under  0. 11, r. 2, on the ground that  these  plots entered  in  the name of the mother of Ramchandar  were  not specifically mentioned in the plaint. This leaves certain lands which came into the possession  of the  appellant  as  a lambardar in the  ordinary  course  of management.  The respondents would clearly be entitled to  a share  in  these  lands also  on  payment  of  proportionate expenses incurred by the appellant in the course of suits in which he came into possession.  This is what the High  Court has ordered and we see no reason to disagree with that view. The  appeal, therefore, fails and is hereby  dismissed  with costs. Appeal dismissed.                             923