Pratap Chand vs Ram Narayan And Another

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

Court: supreme-court

Case Number: Civil Appeal No. 272 of 1956

Decision Date: 22 February 1961

Coram: Wanchoo

In the matter of Pratap Chand versus Ram Narayan and another, decided on 22 February 1961 by the Supreme Court of India, the petitioner was Pratap Chand and the respondents were Ram Narayan and another party. The case concerned a mortgage involving the entire proprietary rights of the mortgagor, including questions about the inclusion of sir land and the possible accession of other lands to the mortgage under Section 70 of the Transfer of Property Act, 1882.

The facts recorded that a person named Ram Chandar executed a simple mortgage deed in favour of the respondents without taking possession of his share in the disputed property. The deed expressly stated: “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 fruit or not, and prohibited and unprohibited wood with entire rights and privileges appertaining to the village.” After the execution of this mortgage, Ram Chandar’s share was sold to the appellants, and certain additional lands that were recorded in the name of Ram Chandar’s mother also came into the possession of the appellant.

The principal issues for determination were whether the mortgage deed incorporated the sir land belonging to Ram Chandar and whether the other lands that subsequently entered the appellant’s possession constituted accession to the mortgage. The Court held that, as drafted, the mortgage deed was a conveyance of all proprietary rights in the mortgagor’s share, which included the proprietary right in the sir land attached to that share. Because the mortgage was effected without possession, the mortgagor did not relinquish possession of his sir, and consequently he was not required to make an application under Section 50 of the Central Provinces Tenancy Act for reservation of a right of occupancy. Sections 49 and 50 of that Act become relevant only when a proprietor who makes a transfer loses his right to occupy any portion of his sir land, either temporarily or permanently.

Although the plaint filed in the suit based on the mortgage made no specific reference to the sir, the Court observed that the decree issued in that suit would sell the entire proprietary right in the sir, khudkashat and related interests pertaining to the mortgagor’s share. The expression “all rights pertaining to the share” used in the sale certificate issued after the decree would, by its terms, include the mortgagor’s proprietary rights in the sir land, thereby granting the respondents a right in that sir land as well. Furthermore, because the appellant had purchased the whole share of Ram Chandar, who was later dispossessed of his ex‑proprietary tenancy, the sir land that subsequently came into the appellant’s possession while the mortgage was still subsisting was treated as accession to the mortgage.

In accordance with section 70 of the Transfer of Property Act, the mortgagees were held to be entitled to one‑half share of the lands that subsequently came into the appellant’s possession. Certain parcels of land were nominally entered in the name of Ramchandar’s mother, although they were actually possessed by Ramchandar and later also came into the appellant’s possession in his capacity as lambardar. The court observed that those lands were held by the appellant on behalf of the whole body of proprietors, and consequently the respondent was entitled to a share in them. The respondent’s claim to those lands was not barred by Order II, rule 2 of the Code of Civil Procedure merely because the lands had not been specifically mentioned in the plaint of the mortgage suit. The Court further held that the authorities cited in Hazarilal v. Hazarimal, AIR 1923 Nag 130 and Seth Manakchand v. Chaube Manohar Lal, AIR 1944 PC 46 were not applicable to the present dispute.

The matter before the Court was Civil Appeal No. 272 of 1956, an appeal from the judgment and decree dated 28 June 1954 passed by the former Nagpur High Court in First Appeal No. 107 of 1946. Counsel for the appellant and counsel for the respondents appeared on 22 February 1961, and the judgment was delivered by Justice Wanchoo. The appeal concerned a certificate issued by the Nagpur High Court. For the purpose of understanding the dispute, the Court set out the following facts. Ramchandar Jat originally held an annas‑10/8 share in the village of Mauza Tamalawadi, the remaining shares belonging to other proprietors. On 27 July 1920 Ramchandar executed a simple mortgage deed in favour of Seth Ram Jiwan and two minors, Ram Narain and Radhey Sham, who are the mortgagees represented by the respondents. On 27 August 1926 the appellant purchased an annas‑5/4 share that belonged to the other shareholders in the village. Subsequently the appellant instituted a suit against Ramchandar, who was the lambardar of the village, seeking profits; a decree was passed against Ramchandar. In execution of that decree, around 1932 the appellant acquired the entire annas‑10/8 share of Ramchandar, thereby becoming the owner of the whole village, subject only to the mortgage of the respondents on the annas‑5/4 share. On 27 July 1932 the respondents filed a suit against Ramchandar on the basis of their mortgage deed, and a preliminary decree for sale was granted in March 1937, to which the appellant was also a party. The preliminary decree was followed by a final decree, and the property was put up for sale. The respondents purchased the land on 1 March 1940; the sale was confirmed on 12 April 1940, and a sale certificate was issued to them. Consequently, by 1940 the respondents owned the annas‑5/4 share in the village, while the appellant owned the annas‑10/8 share and continued to act as lambardar. Ramchandar Jat also held sir land in several khasras totaling 252‑49 acres, and the sale of his share to the appellant brought those lands within the appellant’s possession.

Ramchandar initially held his sir land as an ex‑proprietary tenant. In the year 1936 he was removed from this tenancy and the land passed into the possession of the appellant. Certain other lands were formally recorded as Muafi Khairati in the name of Ramchandar’s mother, although in reality they were occupied by Ramchandar himself. It appears that Ramchandar was also removed from those lands and they subsequently came under the appellant’s control. In addition, the appellant, acting in his capacity as lambardar, acquired further parcels of land either by surrender or by other means. In 1942 the respondents instituted a suit for partition before the Sub‑Divisional Officer of Hard… in which they asserted a right to half‑share of the lands belonging to Ramchandar and to his mother that had come into the appellant’s possession. They also claimed a share in other lands that the appellant held as lambardar, contending that those lands were accession to the mortgage held in their favour and that they were therefore entitled to a proper share. The appellant opposed this contention before the Sub‑Divisional Officer. On 20 October 1943 the officer issued an order rejecting the respondents’ claim and accepting the appellant’s plea. Subsequently, in 1944 the respondents filed the present declaratory suit in the civil court, seeking a proportionate share in the lands specified in the plaint. The appellant resisted, arguing that the respondents had purchased specific khudkashat and chhotaghas plots and therefore could not be granted any interest beyond what was contained in the decree and the sale certificate that formed the basis of their title. Since the particular lands for which the respondents sought a declaration were not mentioned in the sale certificate, the appellant maintained that they were not entitled to any share. The trial court framed numerous issues, granted part of the respondents’ claim and dismissed the remainder. The respondents appealed to the High Court, which upheld the respondents’ entitlement to a half‑share in the sir plots held by Ramchandar and to a one‑third share in the lands of Ramchandar’s mother as well as in certain other lands acquired by the appellant as lambardar, subject to payment of specified amounts. The appellant then applied for leave to appeal to this Court, and a certificate was issued by the High Court. Thus the matter now stands before this Court. The appellant’s principal contention before this Court is that the 1920 mortgage deed, which underlies the respondents’ title, does not include the sir plots in Ramchandar’s possession nor the plots belonging to Ramchandar’s mother. Nor were these plots

The Court noted that the respondents had filed a suit based on the mortgage deed of 1920, yet the deed did not list the sir plots that were in Ramchandar’s possession nor the plots owned by Ramchandar’s mother, and the sale certificate likewise failed to mention those plots although it identified other plots; consequently, the Court held that the respondents could not claim those omitted plots as part of the mortgage accession. The Court then turned to the nature of the mortgage itself, observing that it was a mortgage without possession and that the instrument expressly described the mortgaged property in the following 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 privileges appertaining to the village.” The Court explained that this description covered the entire half‑share of Ramchandar in the –/10/8 share that he owned in the village. While the mortgage went on to describe certain additional items, the Court considered those descriptions to be merely precautionary; even if the portion that had been underlined in the original document were omitted, the respondents, as mortgagees of the –/5/4 share, would still be entitled to everything included in that share. The underlined portion therefore did not limit the scope of the mortgage with respect to the whole –/5/4 share. The Court further observed that the term “sir” was not specifically mentioned in the mortgage, but because the mortgage granted the entire –/5/4 share of the –/10/8 share, it would necessarily encompass any sir land that formed part of that share unless there was an explicit exclusion. In order to assess the effect of this inclusion, the Court referred to sections 68 and 69 of the Central Provinces Land Revenue Act, No. 11 of 1917, which were operative at the relevant time. Section 68 dealt with sir land, while section 69 dealt with khudkashat. The definition of sir appeared in section 2(17) and the definition of khudkashat in section 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, the Court explained, sir land, although it might be part of the home‑farm, constituted a distinct category from khudkashat land. The Court also examined sections 49 and 50 of the Central Provinces Tenancy Act, No. 1 of 1920, which govern the transfer of sir land. Under section 49(1), a proprietor who temporarily or permanently loses, whether by decree of a civil court, by transfer, or otherwise, the right to occupy any portion of his sir land as a proprietor becomes, on the date of such loss, an occupancy tenant, unless he has obtained a sanction under section 50. Section 49(2) prohibited the registration of documents that attempted to transfer all the rights of a proprietor in a substantial portion of sir land without reserving the tenancy right specified in sub‑section (1). The appellant argued that the omission of the sir land from the 1920 mortgage deed was intended to avoid the requirement of obtaining the revenue officer’s sanction under section 50. The Court, however, observed that sections 49 and 50 only become relevant when the proprietor who is making the transfer loses his right to occupy the sir land; therefore, the mere absence of a specific mention of sir land in the mortgage deed did not, by itself, prevent the respondents from acquiring the rights belonging to the mortgaged half‑share.

The Court noted that Section 50 of the Tenancy Act, together with Section 49(2), prohibited the registration of any document that attempted to transfer all of a proprietor’s rights in sir land unless the transfer preserved the tenancy right specified in sub‑section (1). The appellant argued that the mortgage deed of 1920 omitted any reference to sir land because, according to that argument, inclusion of sir land would have required the prior sanction of the Revenue Officer under Section 50. The Court then explained the operation of Section 50: when a proprietor wishes to convey a portion of his sir land without reserving the occupancy right prescribed in Section 49(1), he may apply to the Revenue Officer; the officer may grant sanction only if he is satisfied that the transferor is not principally an agriculturalist, or that the property is self‑acquired or was acquired within the twenty years preceding the application. In the Court’s view, Sections 49 and 50 become relevant only in situations where the proprietor, by making a transfer, loses either temporarily or permanently his right to occupy any part of his sir land, and a sanction under Section 50 is required solely where the transfer is made without the reservation of that occupancy right. The Court observed that the mortgage in the present case was a simple mortgage and did not involve any transfer of possession. Consequently, the proprietor, Ramchandar, never lost his right to occupy his sir land by executing the mortgage, and therefore there was no need for him to reserve any occupancy right or to seek sanction under Section 50. The Court further clarified that the absence of a reservation or a Section 50 application did not imply that, when Ramchandar mortgaged his entire one‑fifth share out of a ten‑eighth share, he was excluding the sir portion that corresponded to the mortgaged share. The mortgage deed of 1920, according to the Court, mortgaged all proprietary rights in the one‑fifth share, including the proprietary right in the sir land belonging to that share. Because the mortgagor did not surrender possession of the sir land, the mortgage did not require any application under Section 50. Accordingly, the Court concluded that the appellant could not rely on the fact that no Section 50 application was made to argue that the mortgage had no effect on the sir rights. The Court held that the mortgage clearly affected the sir right related to the mortgaged share, and that no application under Section 50 was necessary since the mortgagor retained possession and no ex‑proprietary tenancy arose that would have required such an application. The Court then proceeded to consider the next issue.

In the mortgage suit, the plaint recorded that the property described as being subject to the mortgage was set out in paragraph two of the plaint in precisely the same language as that used in the mortgage deed. Paragraph thirteen of the plaint further restated that the mortgagor had mortgaged a five‑fourths share out of his ten‑eighths share. The same paragraph went on to state that, on the date of the mortgage, the mortgagor possessed certain khudkashat and chhotaghas lands together with both cultivating and proprietary rights in those lands, and that those rights, limited to half share, were liable to be sold. The plaint did not refer to any sir land in that paragraph. The Court considered that this omission did not affect the construction of the mortgage, because the mortgage itself expressly covered the sir land that corresponded to the five‑fourths share, even though the mortgagor retained possession of that sir land. The prayer made in the suit was for the sale of the mortgaged property together with the khudkashat and other rights, but the Court regarded this prayer as a precautionary measure, since the decree that would follow the mortgage would inevitably order the sale of the entire proprietary right in the sir land, the khudkashat and all other rights relating to the five‑fourths share. When the sale certificate was examined, it certified that the respondents had purchased the five‑fourths share in the village, including the abadi, the khudkashat, the chhotaghas and all rights pertaining to that share. Although the certificate specifically mentioned khudkashat and chhotaghas, the phrase “all rights pertaining to the share” was interpreted to include the proprietary rights in the sir land that belonged to the share. Accordingly, the Court held that, with respect to the sir land, the proprietary right in the five‑fourths share was indeed mortgaged and that the respondents, by virtue of the sale certificate, acquired a corresponding right in the sir land.

Subsequent to the execution of the mortgage deed in favour of the respondents, the appellant purchased the entire ten‑eighths share of Ramchandar in 1932, acquiring it subject to the existing mortgage held by the respondents. At that moment, Ramchandar became an ex‑proprietary tenant of the whole sir land that corresponded to his share, as provided under section 49 of the Tenancy Act. In 1936, Ramchandar was evicted from his ex‑proprietary tenancy, and the possession of the sir land passed to the appellant, who held the position of lambardar, a possession that has apparently continued since that time. The respondents contended that, in 1936, their mortgage was still in force and that the sir land which had come into the appellant’s possession upon the termination of the ex‑proprietary tenancy became an accession to the mortgaged property. Accordingly, they argued that, as mortgagees, they were entitled to a half‑share in the lands that now formed part of the appellant’s possession. The Court reiterated that the mortgage expressly covered the sir plots, and therefore the proprietary rights in those plots were subject to the mortgage. Consequently, when Ramchandar’s ex‑proprietary rights ceased and the land entered the appellant’s possession, transforming into khudkashat land, the mortgage continued to apply to that khudkashat land to the extent of the respondents’ share under the mortgage.

In this case the Court observed that, had Ramchandar’s ex‑proprietary tenancy continued, the mortgagee would not have been entitled to claim a half‑share in the land; however, because the ex‑proprietary tenancy was extinguished and the land subsequently came into the possession of the lambardar who was also the mortgagor, the land became an accession to the mortgage under section 70 of the Transfer of Property Act, thereby allowing the mortgagees to assert a share in it. The respondents contended that such accession should be a legal accession, but the Court found no illegality in the accession that had occurred. Moreover, the Court confirmed that the accession took place while the mortgage was still subsisting. Consequently, the Court concurred with the High Court’s finding that, on the extinguishment of the ex‑proprietary tenancy, the land which otherwise would have remained in the exclusive possession of Ramchandar as an ex‑proprietary tenant transformed into an accession to the mortgaged property, and the respondents were therefore entitled to half of that land upon their purchase of the five‑fourths share in execution of the decree relating to the mortgage. The Court further noted that the fact that rent due from an ex‑proprietary tenant is payable to the person who becomes the tenant by virtue of sale or mortgage does not affect the outcome after the tenancy is extinguished, because at that point the land passes to the entire proprietary body and thus constitutes an accession to the mortgage proportionate to the mortgaged share. Turning to the lands recorded in the name of Ramchandar’s mother, the Court found that these parcels entered Ramchandar’s possession after the mortgage was created but before the mortgage suit was instituted. Although the title was nominally in his mother’s name, after the appellant purchased Ramchandar’s entire share in 1932 the records showed Ramchandar as an occupancy tenant of those lands, and later the appellant assumed possession of them, apparently as a lambardar. The precise manner and timing of the appellant’s acquisition of possession were not clear, yet the Court held that his possession was on behalf of the whole body of proprietors, rendering the respondents entitled to a share in those lands as well. The respondents argued that their claim to these lands was barred by Order 11 Rule 2 of the Code of Civil Procedure because the lands were not specified in the plaint founded on the 1920 mortgage deed. They relied on the decisions in Hazarilal v. Hazarimal (A.I.R. 1923 Nag 130) and Seth Manakchand v. Chaube Manoharlal (A.I.R. 1944 P.C. 46). The Court, however, distinguished those authorities, observing that both were cases of foreclosure whereas the present suit sought the sale of the share mortgaged to the respondents. Additionally, the plaint had expressly identified the khudkashat plots as being khudkashat at the date of the mortgage, and the respondents had not specified the khudkashat plots at the date of filing the plaint.

The Court observed that, although the respondents had identified certain plots in the plaint which also appeared in the sale certificate, the suit was expressly for the sale of the entire five‑fourths share. Accordingly, the suit encompassed all khudkashat lands that formed part of that share at the time the suit was instituted. The Court explained that a suit for sale does not require the plaintiff to describe each parcel of land possessed by the mortgagor; all such lands are conveyed together with the share that is being sold. Because of this principle, the Court held that the claim could not be said to be barred by Order 11, Rule 2 on the basis that the plots transferred into the name of the mother of Ramchandar were not individually set out in the plaint.

The Court further noted that, during the ordinary course of managing the estate, certain additional lands came into the appellant’s possession in his capacity as lambardar. The Court affirmed that the respondents were entitled to a proportionate share in those lands as well, provided they reimbursed the appellant for the proportionate expenses that he incurred in the various suits through which he acquired possession. The Court stated that this approach was precisely the order made by the High Court, and it found no justification to depart from that view. Consequently, the Court concluded that the appeal failed, dismissed it, and ordered that the costs of the proceedings be awarded against the appellant.