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PETITIONER: SMT. RUKHAMANBAI

       Vs.

RESPONDENT: SHIVRAM & ORS.

DATE OF JUDGMENT03/09/1981

BENCH: DESAI, D.A. BENCH: DESAI, D.A. KOSHAL, A.D. MISRA, R.B. (J)

CITATION:  1981 AIR 1881            1981 SCR  (1) 607  1981 SCC  (4) 262        1981 SCALE  (3)1437

ACT:      Bombay  Tenancy   and  Agricultural  Lands  Act,  1948, sections 2  (18), 4,  32F and  G, scope of-Whether a limited owner of  agricultural land  governed  by  the  Tenancy  Act during his/her life time was entitled to lease the land, and is he  or she did lease the land whether the tenant inducted by the  holder of  life estate  could be said to be lawfully cultivating the land so as to acquire the status of a deemed tenant under  section 4  of the Act and as a corollary would become a  deemed purchaser  on the  tillers’ day-Transfer of Property Act,  section 13,  section 76A  and construction of the deed of settlement.

HEADNOTE:      Under  the  deed  of  settlement  (Ex.  2A)  dated  May 22,1930, the  appellant-landlady acquired a life-interest in certain agricultural  lands under  dispute and the reversion remainder was  in her  children. During her lifetime she was entitled to  enjoy the  income of the property but she could not dispose  of the  property by will, gift or sale. She was also under  a disability  to encumber  the estate though she had the right of carrying on the "vahivat" (management).      By virtue of the provisions of section 32 of the Bombay Tenancy and  Agricultural Lands Act, 1948, providing that on April  1,   1957  styled   as  tillers’  day,  a  tenant  of Agricultural land covered by the said Act would be the owner of the  land held  by him,  if  other  conditions  specified therein are  fulfilled, the  respondents made  five separate applications on August 27, 1962 against the appellant before the Agricultural Lands Tribunal, Raver under section 32G for determining the  price of  the land  held by each of them as tenant. The  appellant contested  the right of the tenant to purchase the land, inter alia contending that under the deed of settlement  she acquired a right only to usufruct of land involved in  the dispute  and she  being a limited owner and the settlement imposing certain disability on her precluding her from dealing with the property which would indicate that she could  not have  leased out the land thereby creating an encumbrance which  would be  impermissible under the deed of settlement and consequently the tenant of each piece of land could not  be said to be lawfully cultivating the land so as

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to a become the deemed tenant under section 4 of the Tenancy Act. The respondents not being tenants within the meaning of the Tenancy  Act could not have become the owner of the land on the tillers’ day. Alternatively it was contended that the minor children  of the  appellant, she being a limited owner had acquired  a vested  right in the land and, therefore, as they were  minors the  date of  compulsory purchase would be postponed under  section 32F ousting the jurisdiction of the tribunal to  determine the  price  under  section  32G.  The Tribunal allowed 608 the applications  and negatived the appellant’s contentions. All the five appeals preferred by the appellant were allowed by the Collector of Jalgaon. The revision petitions filed by the tenants  under section  76 of the Tenancy Act before the Maharashtra Revenue  Tribunal were allowed holding that even though the  landlady in  these cases was a limited owner the instrument settling  the property  on the  landlady did  not preclude her  from  leasing  the  land  and  the  lease  was accordingly valid  under section  4, the  tenant would  be a deemed tenant within the meaning of the Tenancy Act and such deemed tenant would become the owner of the land held by him on the tillers’ day. The appellant approached the High Court under Article  227 of  the Constitution. While rejecting the special civil  applications the High Court remanded the case to the  Collector to give an opportunity to the appellant to agitate the  contention about the quantum of price as it was not dealt  with by  the Collector  on merits.  The appellant having obtained  a certificate  under Article 133(1) (a) and (b) of the Constitution preferred these five appeals.      Dismissing the appeals, the Court, ^      HELD: 1.  On a  plain  reading  of  the  deed  and  the admitted position  that the appellant had leased the land to each of  the respondents  and in view of the requirements of section 4  of the  Tenancy Act,  1948, it  is clear that the respondents would be deemed tenants under that section. [616 E-F]      1 :1. Section 4 comprehends within its sweep any person lawfully cultivating  any land  belonging to another person. If land  belongs to  one  person  and  another  is  lawfully cultivating it,  unless such  person falls  under any of the excepted categories; he would acquire the status of a deemed tenant. The  excepted categories  are: (a)  a member  of the owner’s family,  or (b)  a servant on wages, payable in cash or  kind   but  not  in  crop  share  or  a  hired  labourer cultivating the  land under  the personal supervision of the owner or  any  member  of  the  owner’s  family,  or  (c)  a mortgagee in  possession. It  would thus  appear that if the land belonging to one person is being lawfully cultivated by another person and that such other person is not a member of the owner’s  family or a servant on wages payable in cash or kind but  not in  crop  share  or  a  hired  labourer  or  a mortgagee  in   possession  then  such  cultivator  lawfully cultivating the  land would  be deemed  to be  a tenant. The legal fiction  of  clothing  a  lawful  cultivator  of  land belonging  to  other  person  has  widened  the  traditional concept of  expression "tenant"  which would  normally imply contractual relationship. [615 E-H, 616A]      1:2. Under the deed of settlement appellant was given a life-estate. She  was the  owner of the land during her life time with a limitation that she could not will, gift or sell the property  or encumber  the same.  In view  of these four limitations she  is undoubtedly  a limited  owner. But  this limited owner  holding the  life-estate has  been given  the

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right to  administer the estate after she attained majority. Administration of  the estate would normally include leasing of  the  property  except  where  a  specific  condition  is prescribed precluding  the administrator  from  leasing  the property. There is no such limiting or restrictive condition prohibiting the  appellant in  the course  of her management from leasing  the land.  The appellant  beneficiary being  a woman, the  settlors must  have thought  that she may not be able to  personally carry  on  agricultural  operations  and therefore when  the settlors  authorised her,  on  attaining majority, to administer the estate 609 it would  per se in the absence of a limiting or restricting condition to  the countrary  enable her  to lease  the land. Thus,  if  the  appellant  as  beneficiary  after  attaining majority took  over the  administration and  as part  of the administration leased  the land,  the person  so inducted by her on  the land  would be  lawfully  cultivating  the  land belonging to  the appellant  and being  not in  any  of  the excepted categories would be deemed to be a tenant.[616 B-E]      Dahyalal and Ors. v. Rasul Mohammed Abdul Rahim, [1963] 3 SCR 1, followed.      2. Upon  a pure  literal construction  of deed  coupled with intendment  of the settlement, the appellants’ interest in the  property was  a vested interest during the life lime with a  right to  take over management on attaining majority and to  deal with  the property  in her  own  way,  and  the children had only contingent interest during the period. The property would  devolve on  the heirs  named in the deed and the devolution  would take place on her death. Section 13 of the Transfer of Property Act makes this position clear since none of  her children to whom the remainder was given was in existence at  the time  of transfer.  Even if transfer is in favour of unborn person, at the date of transfer to be valid there has  to be  a  prior  interest  created  by  the  very transfer. This  prior interest  though limited  would not be contingent but  vested interest.  In fact  the  interest  of future born  children would  be contingent till the death of the appellant. The deed of settlement cannot be construed as a transfer  in favour  of  unborn  person,  yet  it  settles property on  trust and the unborn children, under trust, may be beneficiaries  but they can claim interest only after the death of  the appellant  and no  interest in  her life time. Under the  deed of  settlement an  interest  is  created  in favour of  the children  of the  appellant and  the interest would take  effect on  the happening  of specified uncertain event-uncertain  as   to  time-namely,   the  death  of  the appellant the  interest of the children would be contingent. It is nothing short of spes successionis [618 D-H, 619 A]      Rajes Kanta Roy v. Santi Debi, [1957] SCR 77, discussed and distinguished.      3. The  right to  administer the  property conferred on the appellant on her attaining majority inheres the right to lease the  property. If  it be  so, it  is futile to contend that restraint  on the  right to encumber would preclude her from leasing  the land. The right to manage or administer an immovable property  such as  agricultural land  as a prudent man, comprehends the right to lease, save where the contrary intention is indicated. It is equally well-recognised that a limited owner  or a life-estate holder in agricultural land, unless a clear intention to the contrary is expressed, would be entitled  to lease  the land during his or her life time. Reading the  deed of  settlement as a whole no such contrary intention could be found. [620 B-D]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal Nos. 285-89 of 1969.      (From the  judgment and  order dated 7th December, 1966 of the Bombay High Court in Special Civil Appeal Nos. 4 to 8 of 1965) 610      G.L. Sanghi and A.G. Ratnaparkhi for the Appellant.      M.C. Bhandare,  Mrs. Sunanda Bhandare, T. Sridharan and Miss C.K Sucharita, for the Respondents.      The Judgment of the Court was delivered by      DESAI, J.  In the wake of agrarian reforms initiated by the  Bombay   Tenancy  and   Agricultural  Lands  Act,  1948 (’Tenancy Act’  for short)  an amendment of far reaching and revolutionary character  was introduced  in 1956  so  as  to eliminate every  intermediary between the tiller of the soil and the  state. The title of the landlord to the land passes immediately to the tenant on the tillers’ day and there is a completed purchase  or sale  thereof as between the landlord and the  tenant. The  title of  the land  which  was  vested originally in  the landlord  passes to  the  tenant  on  the tillers’ day  or the  alternative period  prescribed in that behalf. This  title is  defeasible only  in the event of the tenant failing  to appear  or making  a statement that he is not willing  to purchase  the land  or committing default in payment  of   the  price   thereof  as   determined  by  the Agricultural Lands Tribunal (See Sri Ram Ram Narain Medhi v. The State of Bombay.       Section  32 provided  that on April 1, 1957 styled the tillers’ day,  a tenant  of agricultural land covered by the Tenancy Act  would become  the owner of the land held by him if other conditions specified in the section were fulfilled. A forum  styled Agricultural Lands Tribunal was set-up and a procedure was  prescribed in  the Act to determine the price payable by such tenant to the erstwhile landlord on becoming owner of  the land  held by him. Accordingly five tenants of five  different   pieces  of  agricultural  land  made  five separate applications  on August  27, 1962  against a common landlord, the appellant herein before the Agricultural Lands Tribunal (’ALT’  for short),  Raver, under section 32 of the Tenancy Act  for determining  the price of land held by each of them as tenant. The land lord appeared in each proceeding and contested  the right of the tenant to purchase the land, inter-alia, contending that under a deed of settlement dated May 22,  1930, she acquired a right only to usufruct of land involved in  the dispute and thus she is a limited owner and the settlement  imposes certain disability on her precluding her from dealing with the property which would indicate that she 611 could not  have leased  out the  land  thereby  creating  an encumbrance which  would be  impermissible under the deed of settlement and consequently the tenant of each piece of land could not  be said to be lawfully cultivating the land so as to become  the deemed  tenant under section 4 of the Tenancy Act. It  was also  contended that, the applicant (respondent herein) before  ALT was  not a  tenant within the meaning of the Tenancy  Act and  therefore he could not have become the owner of the land on the tillers’ day. Alternatively, it was contended that  the minor children of the landlord who being the limited  owner, had  acquired a vested right in the land involved in  the dispute  under the  deed of  settlement and therefore  as   the  landlords   were  minors  the  date  of

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compulsory purchase in the case of such minor-landlord would be postponed  under section  32 and therefore the ALT had no jurisdiction to determine the price under section 32 G.      The ALT  held that  the appellant  was the landlord and the tenant  in each case was a deemed tenant under section 4 of the  Tenancy Act  and on 1st April, 1957 by the operation of law  he became  the owner  thereof. It was also held that the ALT  was under  a statutory  obligation to determine the price under  section 32  G. The ALT accordingly proceeded to determine the price in each case.      Five separate  appeals were  preferred by the appellant landlord in  each case  to the  Collector  of  Jalgaon.  The Collector held  that the  present appellant  landlord had  a limited interest  in the  land and thus as her interest fell short of  ownership, she  could not  be regarded as landlord within the  meaning of  the expression  in the  Tenancy Act, Consequently, the  Collector held  that the  tenant in  each case could  not be  deemed to be a tenant within the meaning of the  expression in  the Tenancy  Act. It  was accordingly held that  the tenant in each case did not become the deemed purchaser under  section 32  and therefore  the ALT  had  no jurisdiction to  determine the  price. The Collector allowed all the  five appeals  and dismissed  the five  applications preferred by the tenant in each case.      The tenant  in each  case preferred a revision petition under section  76 of  the Tenancy Act before the Maharashtra Revenue Tribunal.  The  Special  Bench  of  the  Maharashtra Revenue Tribunal  by a common judgment allowed five revision petitions preferred  by the  tenants and set aside the order of the  Collector and  restored the  order made  by the  ALT holding that  even though  the landlord in these cases was a limited owner the instrument settling the property 612 on the  landlord did  not prohibit the landlord from leasing the land and lease was accordingly valid and therefore under section 4,  the tenant  would be  a deemed tenant within the meaning of  the Tenancy  Act and  such deemed  tenant  would become the  owner of  the land  held by  him on the tillers’ day.      The landlord  approached the  High Court  under article 227 of  the Constitution.  The Division  Bench of the Bombay High Court by a common judgment disposed of the five special civil applications  filed by  the landlord.  The High  Court relying on  the decision  of this  Court in  Dahya  Lal  and Others v.  Rasul Mohammed  Abdul Rahim held that the deed of settlement did  not prohibit  the landlord  from leasing the land and if the lease is created by such a limited owner not precluded from  leasing the  land, it  would confer on the J tenant of such landlord, the status of a deemed tenant under section 4  and  such  a  tenant  would  be  deemed  to  have purchased the land held by him on the tillers’ day. The High Court negatived  the contention  that the  children  of  the landlord had  a vested  interest in the land involved in the dispute  during  the  life-time  of  the  landlord  and  The children  being  minors,  the  date  of  purchase  would  be postponed under  section 32  F. The  High Court  accordingly rejected the  special civil  applications but  remanded  the case to the Collector to give an opportunity to the landlord to agitate  the contention  about the quantum of price which Contention was not dealt with by the Collector on merits.      The landlord  by certificate  under article 133 (1) (a) and (b) of the Constitution preferred these five appeals      Expression ’Tenancy’ has been defined in section 2 (17) of the Act to mean "relationship of landlord and tenant".      ’Tenant’ is defined in section 2 (18) as under:

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    ’Tenant" means  a person  who holds  land on  lease and includes:      (a)  a person  who is  deemed  to  be  a  tenant  under           section 4;      (b)  a person who is a protected tenant; and 613      (c)  a person who is a permanent tenant;"      Section 4  which is  material for  the  present  appeal reads as under:           "4.  A   person  lawfully   cultivating  any  land      belonging to  another person  shall be  deemed to  be a      tenant if such land is not cultivated personally by the      owner and if such person is not:-      (a)  a member of the owner’s family, or      (b)  a servant on wages payable in cash or kind but not           in crop  share or a hired labourer cultivating the           land under  the personal  supervision of the owner           or any member of the owner’s family, or      (c)  a mortgagee in possession."      There are  two explanations  appended to  this  section which are  not material  for the present purpose. Section 32 (1) which  was introduced  in 1956  provided that on the 1st day of  April, 1957,  called the tillers’ day, every tenant, subject to  the provisions  of the next succeeding sections, be deemed  to have  purchased from his landlord, free of all encumbrances subsisting  thereon on  the said  day, the land held by him as tenant if he satisfied the conditions set out in the  section. Section 32G provided that as soon as may be after the tillers’ day, the ALT shall publish or cause to be published a  public notice  in the  prescribed form  in each village within the jurisdiction calling upon:-      (a)  all  tenants   who  u/s  32  are  deemed  to  have           purchased the lands:      (b)  all landlords of such lands, and      (c)  all other  persons interested  therein; to  appear           before the  ALT  on  the  date  specified  in  the           notice. The  ALT  shall  then  proceed  to  record           statement of  the tenant  whether he  is or is not           willing to  purchase the  land held  by him  as  a           tenant If  the tenant  is willing to purchase, the           Tribunal shall  after giving an opportunity to the           tenant and landlord and all the other persons 614           interested in  such land  to be  heard  and  after           holding an enquiry determine the purchase price of           such land  in accordance  with the  provisions  of           section 32  and  sub-section  3  of  section  63A.           Section  32  post  pones  the  date  of  statutory           purchase in  the case  where a landlord is a minor           or a  widow or  a person  subject to any mental or           physical disability  or a  serving member  of  the           armed forces to a date one year from the expiry of           the period  during which such landlord is entitled           to terminate the tenancy under section 31.      Having noticed  the relevant  provisions of the Act, it is necessary  first to refer to the deed of settlement under which the landlord acquired land involved in this appeal. By the deed  of settlement  Exh. 2-A dated May 22, 1930 Devidas Devlal Seth father and Sheo Parshad Devidas Seth, brother of the appellant  landlord settled on trust the properties more particularly  described   in  the   deed.  At  the  time  of settlement, appellant  the beneficiary under the trust was a minor and the deed provided for the consequences to ensue on her attaining  majority. The relevant portion of the deed of trust in this behalf reads as under:

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         "After the  girl completes  21 years and while she      is physically and mentally in good condition, the right      of carrying on the ’vahivat’ (management) of the estate      and of  spending the  income thereof is with her alone,      during her  life-time. However, she has no right in any      way either  to purchase  the  aforesaid  estate  or  to      create in any way a charge (Translation is disputed and      is  stated   that  ’encumbrance’   is  the  appropriate      rendering) thereon;  nor she  has a right to dispose of      the said estate under a will."      The deed provides for the disposal of the estate on the death of  beneficiary, the  appellant giving  2/3rd  of  the estate to her male issues and 113rd to the female issues. In this behalf the recital in the deed is: that the children as many as  will be  alive at  the time of her death are to get the estate  according to the terms mentioned in the deed and if no  child will be living the estate is to go to her grand children according  to the  terms in the deed. The direction was given  that 2/3rd  and 1/3rd share shall be given to the children who  will be living at the time of her death and in the event  that there  is no  child of  a particular sex the whole estate was to go to the children 615 of the  other sex.  There is also a provision about disposal of the estate in the event the appellant has no child of her own.      The contention  which  Mr.  G.L.  Sanghi,  the  learned counsel for  the appellant put in the forefront was that the appellant being a limited owner under the deed of settlement was not entitled to lease the land and therefore respondents could not  be said to be said to be lawfully cultivating the land and  therefore could  not become  deemed tenants  under section 4.  Consequently, they  could not have become deemed purchasers on  the tillers’  day.  As  a  corollary  it  was contended that  in any  event as  the children have a vested remainder in  the estate  the  date  of  purchase  would  be postponed  as  provided  in  section  32  of  the  Act,  and therefore ALT  could  not  entertain  an  application  under section 32 and proceed to determine the price on the footing that the tenant has become a deemed purchaser.      Under the  deed of settlement appellant acquired a life interest and  the reversion-remainder  was in  her children. During her life time she was entitled to enjoy the income of the property  but she  could not  dispose of the property by will, gift  or sale.  She was  also under  a  disability  to encumber the  estate and  it was  urged  that  lease  is  an encumbrance. The  substantial question  is whether a limited owner of  agricultural land  governed  by  the  Tenancy  Act during his/her  life time was entitled to lease the land and if he  or she did lease the land whether the tenant inducted by the  holder of  life estate  could be said to be lawfully cultivating the land so as to acquire the status of a deemed tenant under  section 4  and as  a corollary  would become a deemed purchaser  on the  tillers’ day.  Section 4  has been extracted hereinbefore.  It comprehends within its sweep any person lawfully  cultivating any  land belonging  to another person. If  land  belongs  to  one  person  and  another  is lawfully cultivating  it, unless such person falls under any of the excepted categories; he would acquire the status of a deemed tenant.  The excepted categories are: (a) a member of the owner’s  family, or  (b) a  servant on  wages payable in cash or  kind but  not in  crop share  of a  hired  labourer cultivating the  land under  the personal supervision of the owner or  any  member  of  the  owner’s  family,  or  (c)  a mortgagee in  possession. It  would thus  appear that if the

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land belonging to one person is being lawfully cultivated by another person and that such other person is not a member of the owner’s  family or a servant on wages payable in cash or kind but  not in  crop  share  or  a  hired  labourer  or  a mortgagee  in   possession  then  such  cultivator  lawfully cultivating the land would be deemed 616 to be  a tenant.  The legal  fiction of  clothing  a  lawful cultivator of land belonging to other person has widened the traditional  concept  of  expression  ’tenant’  which  would normally imply contractual relationship.      Under the  deed of  settlement appellant  was  given  a life-estate. She  was the  owner of the land during her life time with a limitation that she could not will, gift or sell the property  or encumber  the same.  In view  of these four limitations she  is undoubtedly  a limited  owner. But  this limited owner  holding the  life estate  has been  given the right to  administer the estate after she attained majority. Administration of  the estate would normally include leasing of  the  property  except  where  a  specific  condition  is prescribed precluding  the administrator  from  leasing  the property. There is no such limiting or restrictive condition prohibiting the  appellant in  the course  of her management from leasing  the land.  The appellant  beneficiary being  a woman, the  settlors must  have thought  that she may not be able to  personally carry  on  agricultural  operations  and therefore when  the settlors  authorised her,  on  attaining majority, to  administer the  estate it  would per se in the absence of  a  limiting  or  restricting  condition  to  the contrary  enable  her  to  lease  the  land.  Thus,  if  the appellant as  beneficiary after attaining majority took over the administration  and as part of the administration leased the land, the person so inducted by her on the land would be lawfully cultivating the land belonging to the appellant and being not  in any of the excepted categories would be deemed to be  a tenant.  On a  plain reading  of the  deed and  the admitted position  that she  had leased  the land to each of the respondents  and keeping  in view  the  requirements  of section 4,  the conclusion  that the  respondents  would  be deemed tenants under section 4 of the Act is inescapable.      The view  which we  are taking,  is borne  out  by  the observations of  this Court  in Dahyalal  and Ors.  v. Rasul Mohammed Ahdul  Rahim (supra).  In that  case the tenant was inducted on  the land  by a  mortgagee in possession and the contention was that as the mortgagee in possession would not be deemed  to be  a tenant  because he  is in  the  excepted categories set  out in section 4, the tenant inducted by him would not  acquire the  status of  a  deemed  tenant.  After analysing the provisions of the Tenancy Act, this Court held that all  persons other than those mentioned in clauses (a), (b) and  (c)  of  section  4  who  lawfully  cultivate  land belonging to other persons whether or not their authority is derived directly  from the  owner of the land must be deemed tenants of the land. The execution of 617 mortgagee in  possession from  the category of deemed tenant was explained  on the  ground of  public policy  in that  to confer such  status upon mortgagee in possession would be to invest him  with  rights  inconsistent  with  his  fiduciary character. However,  the tenant  inducted by  a mortgagee in possession  in   discharge  of   his  liability  of  prudent management cast by section 76(a) of the Transfer of Properly Act as  also under  the authority derived from the mortgagor would be  lawfully cultivating  the  land.  Accordingly  the person inducted  would be  a  deemed  tenant  who  would  be

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entitled to  the  protection  of  the  Act  even  after  the mortgage is  redeemed. Once  such a tenant enjoys the status of a  deemed tenant  and holds land in that capacity, on the tillers’ day he would become the deemed purchaser.      A contention  was raised  that this Court overlooked in Dahyalal’s ease  a vital  point  that  a  transferor  cannot confer a  better title  on another than he himself possesses and that  therefore in view of section 76(a) of the Transfer of Property  Act a  mortgagee in possession cannot create an interest to endure beyond redemption of mortgage to bind the mortgagor. It was urged that if a mortgagee in possession is specifically excluded  from acquiring  status  of  a  deemed tenant, ipso  facto tenant  inducted by  him cannot  acquire that status. The court negatived the contention. It would be advantageous in  this context  to refer  to Prabhu v. Ramdeo and Ors.  where this Court held that a tenant of a mortgagee in possession  can invoke  the benefit of subsequent tenancy legislation which  provided that  such a tenant could not be evicted  except   in  the  circumstances  set  out  in  that legislation. The  mortgaged property  in that  case was land used  for   agricultural  purposes   and  the  mortgage  was usufructory  mortgage.   After   redemption   the   original mortgagor sued for actual possession from tenant inducted by the erstwhile  mortgagee  alleging  that  on  redemption  of mortgage, the  tenant has  to surrender  possession. In  the meantime, Rajasthan  Tenancy Act of 1955 had been introduced and the tenant claimed protection against eviction under it. This Court  after referring  to Mahabir  Gope and  Others v. Harbans Narain Singh and others and Harihar Prasad Singh and Another v.  Must. of Manshi Nath Prasad and Others held that rights of the tenants inducted by the mortgagee may 618 conceivably be  improved by  virtue of  statutory provisions which may  meanwhile come  into operation. Such a case would clearly be  an exception  to the  general rule prescribed by the Transfer  of Property  Act that  mortgagee in  course of management cannot  create an  interest  which  would  endure beyond the redemption of mortgage.      It was  next contended  that in any event the appellant having been given a life estate with the vested remainder in her children,  she had  no vested  interest in  the property during her  lifetime but  her interest  would be  contingent interest  and   therefore  even  during  her  lifetime,  the children would  be the  owners and  as they  were minors the date of  statutory purchase would be postponed under section 32 F.  Looking to  the terms  of  the  deed  of  settlement, subject to  the limitations therein prescribed the appellant had a  vested interest  with a right to take over management on attaining  majority and  to deal with the property in her own way.  Assuming without deciding that she had no right to will, gift,  sell or  encumber the property yet assuming she did  deal   with  it  in  the  manner  prohibited  it  would nonetheless be  binding during  her lifetime.  The  property would devolve  on the  heirs  named  in  the  deed  and  the devolution would  take place on her death. Therefore, upon a pure literal construction of deed coupled with intendment of the settlement  it  is  difficult  to  accept  Mr.  Sanghi’s submission that her interest in the property during her life time was contingent interest. This will further be borne out by the  provision contained in section 13 of the Transfer of Property Act  inasmuch as  she was  given  life  or  limited interest and  the remainder to her children none of whom was in existence at the time of transfer. Even if transfer is in favour of unborn person, at the date of transfer to be valid there has  to be  a  prior  interest  created  by  the  very

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transfer. This  prior interest  though limited  would not be contingent but  vested interest.  In fact  the  interest  of future born  children would  be contingent till the death of the appellant. The deed of settlement cannot be construed as a transfer  in favour  of  unborn  person,  yet  it  settles property on  trust and the unborn children, under trust, may be beneficiaries  but they can claim interest only after the death of  the appellant  and no  interest in  her life time. Under the  deed of  settlement an  interest  is  created  in favour of  the children  of the  appellant and  the interest would take  effect on  the happening  of specified uncertain event-uncertain  as   to  time-namely,   the  death  of  the appellant, then till the death of the appellant the interest of the  children would be contingent. It is nothing short of spes 619 successionis. Mr.  Sanghi, however,  referred to Rajes Kanta Roy v. Santi Debi and urged that by a parity of reasoning we must  hold   that  the  interest  of  the  appellant  was  a contingent interest.  In that  case one  Ramani  created  an endowment in  respect of some of his properties in favour of his family  deity and  appointed his three sons as shebaits. After the  death of  one of  his sons, widow of the deceased son instituted  a suit  against other  members of the family for a  declaration that  she as  an  heir  of  her  deceased husband, was  entitled to  function as  shebait, in place of her husband.  The suit ended in a consent decree recognising the right  of the  widow as  a co-shebait.  Subsequently the settlor Ramani  and his  two other sons filed a suit against widow of  the pre-deceased  son for  a declaration  that the consent decree was null and void. During the pendency of the suit the  settlor Ramani executed a registered trust deed in respect of his entire property. The eldest son was appointed trustee to  hold property  under trust  subject  to  certain powers and obligations. The second suit which was pending at the death  of settlor  Ramani ended in a consent decree. One of the  terms of  the consent  decree was  that widow of the predeceased son gave up her rights under the earlier consent decree by  which she  obtained status  of co-shebait and she was paid  Rs. 475/- per month as allowance. Complaining of a default in the payment of allowance she filed an application for  execution   to  realise  the  arrears  and  she  sought attachment and  sale of  certain properties.  The eldest son filed an  objection contending  that under the settlement of trust his  interest in  the property was contingent till the debts are  paid and as the precondition is not satisfied the contingent  interest  is  not  attachable.  Negativing  this contention, it  was  held  that  the  determination  of  the question as to whether any interest created by trust deed is vested or  contingent has  to be  guided by  the  principles recognised under  sections 19  and 21  of  the  Transfer  of Property Act  and the Indian Succession Act. After referring to certain  English authorities and text-books by writers it was held  that the question is really one of intention to be gathered from  a comprehensive  view of  all the  terms of a document. After  examining all  the terms  of  the  deed  of trust, this  Court held  that even though the debts were not discharged the  appellants,  namely,  the  sons  acquired  a vested interest and not a contingent one.      Having examined  the  trust  deed  before  us,  we  are satisfied that  the appellant had the vested interest in the property during 620 her  life   time  and   the  children  had  only  contingent intermediating that period.

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    It was  lastly contended  that  as  the  appellant  was prohibited from creating an encumbrance on the property, she had no  right to lease the property because in a certain way lease is  also an  encumbrance. Without going into the wider question whether the expression ’encumbrance’ in the context in which  it is  used would comprehend lease within its fold we would  dispose of the contention on the short ground that the  right  to  administer  the  property  confined  on  the appellant on  her attaining  majority inheres  the right  to lease the  property. If  it be  so, it  is futile to contend that restraint  on the  right to encumber would preclude her from leasing  the land. The right to manage or administer an immovable property  such as  agricultural land  as a prudent man, comprehends the right to lease, save where the contrary intention is indicated. It is equally well recognised that a limited owner  or a life estate holder in agricultural land, unless a clear intention to the contrary is expressed, would be entitled  to lease  the land during his or her life time. Reading the  deed of  settlement as  a whole, we do not find any such contrary intention and, therefore, we must negative the contention .      Having examined  all the  contentions of Mr. Sanghi, we find no merit in any of them and therefore all these appeals fail and are dismissed with costs. Hearing fee in one set. V.D.K .                                   Appeals dismissed. 621