Lilachand Tuljaram Gujar And Others vs Mallappa Tukaram Borgavi And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 24 of 1955

Decision Date: 11 September 1959

Coram: M. Hidayatullah, K. C. Das Gupta

In this matter the parties were Lilachand Tuljaram Gujar and others as petitioners and Mallappa Tukaram Borgavi and others as respondents, with the judgment rendered on 11 September 1959 by a Bench that included M Hidayatullah, K C Das Gupta and the Chief Justice Sudhi Ranjan Das. The case was reported as 1960 AIR 85 and 1960 SCR (1) 693, concerning the provisions of section 74 of the Bombay Land Revenue Code of 1879 relating to the occupancy, relinquishment and surrender of a registered occupant’s rights. The suit from which the present appeal arose concerned the redemption of certain occupancy lands that were owned and mortgaged by two brothers, identified only as S and A, the land records (Khata) being in the name of S, who was the registered occupant under the said section. In 1888 S and A executed a usufructuary mortgage in favour of the predecessors-in-interest of the appellant-respondents. Subsequently, in 1900 S filed a Rajinama under section 74 making an unconditional surrender of his occupancy, and on the same day the mortgagees filed a Kabuliyat requesting that the occupancy in the mortgaged property be transferred to them. Both the Rajinama and the Kabuliyat were granted by the Mamlatdar, yet the Rajinama made no claim that S was relinquishing the occupancy on behalf of his brother A. After S’s death A applied to the Mamlatdar to cancel the transfer to the mortgagees and to have the mortgaged property registered in his own name; this application was rejected. The heirs of S, asserting that they were also heirs of A, instituted a suit for redemption. The respondents contended that the plaintiffs were not heirs of A and that the Rajinama had extinguished the right of redemption over the entire occupancy. The administrators of A’s estate were initially added as defendants but were later designated as co-plaintiffs. The lower courts ruled against the respondents, leading to the present appeal by special leave.

The central issue for determination was whether S’s surrender effected a relinquishment of the whole occupancy, including A’s share, thereby extinguishing A’s right of redemption. The Court held that the Rajinama could not affect A’s share because the surrender by the registered occupant does not automatically impinge upon the interests of other occupants. Under a proper construction of section 74, the registered occupant possesses no inherent or independent authority, absent an express or implied power that must be specifically pleaded and strictly proved, to give notice of relinquishment that would affect the rights of other occupants. While the provision confers certain rights and imposes obligations on the registered occupant, it was never intended to deprive other occupants of their existing rights. Consequently, the right of redemption in respect of A’s share continued to subsist despite the surrender made by S.

The Court noted that the statutory provision under section 74 of the Bombay Land Revenue Code did not permit a registered occupant to dispossess other occupants of their rights. It referred to the decision in Lalchand Sakharam Marwadi v. Khendu Kedu Ugbade, 22 Bom. L.R. 1431, to illustrate that the rights of co-occupants could not be overridden by a unilateral surrender. The Court further held that, although the applicant identified as “A” had been unable to secure registration of his name on the mortgaged land, this failure did not give rise to a claim of adverse possession because the mortgagees’ possession stemmed from a lawful usufructuary mortgage. The Court emphasized that an unaided claim of adverse title could not diminish the existing equity of redemption, nor could it truncate the statutory limitation period applicable to the suit. To support this position, the judgment cited Khiarajmal v. Diam, I.L.R. 32 Cal. 296. The judgment then set out the procedural backdrop of the appeal. It recorded that the appeal, numbered Civil Appeal No. 24 of 1955, was taken by special leave from a decree dated 11 March 1949 pronounced by the Bombay High Court in Letters Patent Appeal No. 22 of 1945. That decree itself arose from a judgment dated 3 August 1944 in Second Appeal No. 754 of 1942. Counsel for the appellants was identified as M. S. K. Sastri, while counsel for the respondents was recorded as Naunit Lal. The judgment was dated 11 September 1959 and delivered by the Chief Justice, Das C. J., who observed that the present appeal originated from Original Suit No. 582 of 1937, which had been instituted in the Subordinate Judge’s Court at Chikodi by the deceased Tukaram Shidappa Borgavi alias Teli and his son Mallappa Tukaram Borgavi alias Teli, the first respondent. The suit sought redemption of certain mortgaged lands, possession of those lands free from encumbrances, and various ancillary reliefs.

The Court then explained the factual matrix that underpinned the dispute. The mortgaged property comprised revenue share No. 301, which was a Devasthan Inam land carrying the specific obligation to supply oil for the Nand Deep, meaning that a lamp must be kept continuously burning before the deity Shri Tholaba in the village of Nipani. The land had originally been owned by two brothers, Shiddappa and Annappa. Although ownership was vested in the brothers, the official land-record (khata) listed Shiddappa as the registered occupant pursuant to section 74 of the Bombay Land Revenue Code, 1879 (Bombay Act V of 1879). The Court summarized the critical transactions that followed. On 23 January 1888, Shiddappa and Annappa executed a usufructuary mortgage (Exhibit D-51) in favour of Lalchand Bhavanchand Gujar and Tuljaram Bhavanchand Gujar for a total sum of Rs. 1,300, which consisted of Rs. 1,100 owed under an earlier mortgage and an additional cash advance of Rs. 200. The mortgage deed stipulated that the borrowed amount was to be repaid within three years, that the mortgorgors would continue to pay the judi and meet the expenses of the Nand Deep, and that, should the mortgorgors fail to meet those outgoings, the mortgagees were authorised to bear such expenses and add them to their mortgage claim. Subsequently, on 10 March 1900, Shiddappa alone executed a simple mortgage (Exhibit D-52) in favour of the same mortgagees for Rs. 600. Part of the consideration for this simple mortgage comprised monies that both brothers had borrowed on bonds executed jointly by them. The simple mortgage deed expressly required the mortgagees to bear the expenses of the Nand Deep and to debit those expenses against the mortgage account, thereby ensuring that the financial obligations associated with the religious duty remained attached to the mortgage arrangement.

On 22 March 1900, prior to the registration of the simple mortgage deed, Shiddappa—who was then the registered occupant of the mortgaged land—executed a Rajinama under section 74 of the Bombay Revenue Code, expressing his intention to surrender unconditionally the khata of revenue survey number 307 at the close of the current year. On that same day the mortgagees submitted a Kabuliyat requesting that occupancy of the mortgaged property be transferred to them. Both the Rajinama and the Kabuliyat received the approval of the Mamlatdar on 5 May 1900. After Shiddappa’s death, Annappa, his brother, filed an application with the Mamlatdar in 1905 asserting that the mortgaged land constituted a Devasthan Inam and seeking the cancellation of the transfer made in favour of the mortgagees, as well as the restoration of the property to his own name; this application was dismissed. In 1907 Shiddappa’s son Tukaram—who was the first plaintiff in the present suit—and Annappa instituted suits against the mortgagees under the Deccan Agriculturists’ Relief Act to obtain accounts of the mortgage securities. The suit was dismissed, and an appeal to the District Court at Belgaum was also turned down on 15 March 1909. Annappa again petitioned for possession of the lands, but this request was rejected on 4 August 1910. In 1911 Annappa together with Tukaram filed Civil Suit No. 362 of 1911, again invoking the Deccan Agriculturists’ Relief Act for the same reliefs; this suit likewise was dismissed and the subsequent appeal met the same fate on 17 March 1914. In 1922 Annappa died without leaving any issue. The mortgagee Lalchand also died without issue, while the other mortgagee Tuljaram died leaving a son, Lilachand Tuljaram, who succeeded to all of Tuljaram’s mortgage securities. On 1 November 1937 Tukaram, together with his son Ganpat, claimed to be the legal representatives of both Shiddappa and Annappa and filed Original Suit No. 586 of 1937— from which the present appeal arises—against the appellants Lilachand and his three sons, seeking redemption of the mortgages. In their written statement the defendants-appellants contended that the deceased Shiddappa had sold the mortgaged property to the mortgagees, thereby extinguishing any equity of redemption, and that because Shiddappa alone was the registered occupant, his Rajinama was valid and binding upon Annappa. They further asserted that the plaintiffs were not heirs of Annappa, since Annappa had died after transferring his interests in the mortgaged properties to other persons. It emerged that Annappa died in 1922 after executing and publishing a last will and testament in which he bequeathed his interest in the mortgaged properties to a Krishna Kallappa. Krishna Kallappa applied for letters of administration of Annappa’s estate; despite Tukaram’s opposition, letters of administration were granted to Krishna Kallappa, with a copy of the will annexed. After Krishna Kallappa’s death, his four sons were added as defendants to the suit, and subsequently, on their own application, they were re-categorized as plaintiffs.

Subsequently, on their own application, the four defendants were reclassified as plaintiffs. The trial court then examined the effect of the Rajinama executed by Shiddappa. It concluded that the Rajinama did not extinguish the mortgagors’ title to the mortgaged land, and therefore the mortgagors retained their ownership interests. The court also found that the plaintiffs were engaged in agriculture and that they remained liable to pay the amounts due under the simple mortgage. After taking accounts, the trial court observed that the two mortgages had discharged themselves and consequently issued a decree for possession, declaring that both mortgages had been satisfied.

The mortgagees, identified as defendants 1 to 4, appealed this decree to the District Court, Belgaum, in Regular Civil Appeal No. 322 of 1940. The District Court held that the Rajinama manifested Shiddappa’s intention to transfer his title in the suit land to the mortgagees; therefore, Shiddappa’s heirs, plaintiffs 1 and 2, could not claim redemption of Shiddappa’s one-half share in the suit land. Regarding Annappa’s share, the judge held that the Rajinama did not operate to transfer Annappa’s interest to the mortgagees, and because the mortgages were still subsisting, the defendants could not acquire title by adverse possession. In consequence, the District Court allowed the appeal in part: it dismissed the suit as to the claims of plaintiffs 1 and 2, but it upheld the claims of plaintiffs 3 to 6, who were the legal representatives of Annappa, allowing them to redeem Annappa’s one-half share of the mortgaged property upon payment of one-half of the sums due under the two mortgages.

The mortgagee-defendants 1 to 4 then filed a Second Appeal No. 754 of 1942 before the High Court challenging the part of the decree that rejected their claim to Annappa’s share. Plaintiffs 1 and 2 also filed a Second Appeal No. 1011 of 1942 contesting the dismissal of their claim to redeem Shiddappa’s one-half share. Both appeals were heard together, and Justice Weston delivered the judgment. He affirmed that, with respect to Shiddappa’s share, the Rajinama constituted a complete relinquishment of his interest. However, concerning Annappa’s share, he concurred with the District Judge that Shiddappa’s Rajinama could not bind Annappa’s interest. Accordingly, the High Court dismissed both appeals.

Both parties then pursued Letters Patent Appeals: defendants 1 to 4 filed L.P.A. No. 22 of 1945, and plaintiffs 1 and 2 filed L.P.A. No. 16 of 1945. The Division Bench dismissed both appeals. The present plaintiff No. 1, the son of Tukaram (the deceased son of Shiddappa who had been the original plaintiff 1), had not appeared before this Court, rendering the Division Bench’s decision final as to him. After the High Court refused permission to appeal to this Court, the mortgagee-defendants 1 to 4 applied for and obtained special leave to appeal the Division Bench’s decision insofar as it upheld the rejection of their claim to Annappa’s half-share, giving rise to the present appeal.

The mortgagee defendants obtained special leave from this Court to appeal the Division Bench’s decision that upheld the rejection of their claims to Annappa’s half-share in the mortgaged property. Consequently, the present appeal was filed. The plaintiffs-respondents, who are the legal representatives of Annappa and against whom the appeal is directed, have not entered appearance in this proceeding. The counsel appearing for the appellants argued that, taken together, the Rajinama and the Kabuliyat demonstrated a transfer of title from the mortgagors to the mortgagees, thereby extinguishing the equity of redemption not only of Shiddappa but also of Annappa. The counsel relied on the record showing that Shiddappa acted as the manager and karta of the joint family and that, in passing the Rajinama, he performed that function; consequently, the counsel contended that the Rajinama bound Annappa, Shiddappa’s brother. The Division Bench, however, observed in its judgment on the Letters Patent Appeal that the allegation that Shiddappa had acted as karta was nowhere pleaded by the defendants-appellants in their written statement. In agreement with the High Court, the Court declined to permit the appellants’ counsel to introduce this new case. With that argument therefore set aside, the counsel for the appellants advanced a different line of reasoning. He submitted that, under section 74 of the Bombay Land Revenue Code, Shiddappa, being the registered occupant, effected a relinquishment of the entire occupancy by filing the Rajinama, and that such relinquishment amounted to a surrender of the rights of both brothers, Shiddappa and Annappa. Section 74 of the Bombay Land Revenue Act, as it stood at all material times, provided:

“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 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 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.” The appellants’ counsel placed reliance on the concluding paragraph of the section, which states that when a relinquishment is made in favour of more than one person, the principal one of such persons must enter into a written agreement to become the registered occupant.

The provision required that when a relinquishment was made in favour of more than one person, the principal among those persons had to enter into a written agreement to become the registered occupant and that his name would then replace the previous registered occupant in the records. The Court observed that this clause indicated that, for the purposes of the revenue authorities, the registered occupant represented the whole occupancy, and it noted that the section also mandated that the notice of relinquishment be given by the registered occupant. However, the Court declined to accept the argument that this meant the Rajinama filed by the registered occupant bound every occupant. The final paragraph of the section expressly recognised that a relinquishment could be in favour of several persons. While the requirement that the principal person enter into a written agreement facilitated the operation of the Code, it did not extinguish the rights of the other persons in whose favour the occupancy was relinquished. Their rights as occupants were preserved, as the opening paragraph of the section granted every occupant, singular or plural, the right to relinquish his occupancy either absolutely or in favour of a specified person. The Court further noted that although, where there are multiple occupants, the registered occupant must give the notice of relinquishment on behalf of any occupant, this does not automatically imply that a notice issued by the registered occupant represents all occupants or any particular occupant other than the registered occupant, unless there is a specific pleading and clear proof. Moreover, the registered occupant does not possess the authority to give such a notice without reference to the other occupants in order to affect their interests in the occupancy.

Turning to the Rajinama, the Court found that Shiddappa did not claim to file the Rajinama on behalf of Annappa, nor did he have the right to do so solely because he was the registered occupant. The Court referred to the earlier decision in Lalchand Sakharam Marwadi v. Khendu Kedu Ughade, where one of four brother mortgagors, who was the registered occupant of the mortgaged land, executed a Rajinama in favour of the mortgagee, and the mortgagee subsequently executed a Kabuliyat. The remaining three mortgagors sued to redeem the mortgage, contending that the Rajinama conveyed only the interest of the brother who executed it and did not affect their own interests. The Court held that, although the brother who executed the Rajinama was a co-mortgagor, he had no authority to sell the other mortgagors’ interests in the equity of redemption; for them, he was in the same position as an outsider. While the judgment in that case did not expressly cite section 74 of the Bombay Land Revenue Code, the Court noted that the factual situation was very similar to the present case and that the decision was based on the provisions of that section. Consequently, the Court concluded that a Rajinama passed by the registered occupant does not, by itself, bind the other occupants without a specific surrender of their rights proved in the pleadings.

The judgment referred to a prior decision whose facts were very similar to those presented in the present case, and it demonstrated that the court’s understanding of the applicable law was based solely on the provisions of section 74 of the Code. The Court explained that, when section 74 is correctly interpreted, the existence of more than one occupant for the same occupancy gives each occupant a separate set of rights. The registration of one occupant as the “registered occupant” triggers the effects of the Code, granting certain rights and imposing certain obligations on that registered occupant as specified in the Code, but those effects do not extinguish the rights of the other occupants. The Court observed that an occupant who is not the registered occupant may wish to give up his occupancy, yet he cannot issue a notice of relinquishment on his own; such a notice must be made through the registered occupant. Nevertheless, unless the registered occupant receives an explicit or implied authority—clearly pleaded and strictly proved—he possesses no inherent or independent right to issue a notice that would affect the interests of the other occupants. Consequently, the Court held that the Rajinama executed by Shiddappa did not affect Annappa’s right, and Annappa’s equity of redemption remained intact at all material times. The Court affirmed that the Division Bench of the High Court, in the Letters Patent Appeals, had reached the correct conclusion, and it rejected the principal contention raised before it. The appellant’s counsel then suggested, in a weak manner, that Annappa’s interest was extinguished because the mortgagees had acquired adverse possession since at least 1905, when Annappa’s attempt to have the mortgaged property registered in his name had failed. The Court noted that the mortgagees had entered possession pursuant to a usufructuary mortgage, giving their possession a lawful origin, and that a mere claim of adverse title by the appellants could not defeat the surviving equity of redemption of the mortgagors nor shorten the limitation period for a suit for redemption. Referring to the observation of the Judicial Committee in Khiarajmal v. Daim (1904) L. R. 32 Ind. App. 23, the appellant’s counsel did not pursue the limitation issue further. No additional points were raised on appeal, and therefore the appeal was dismissed for the reasons outlined. As the respondents were absent, no costs order was made, and the appeal was dismissed.