{"id":9625,"date":"1987-03-06T00:00:00","date_gmt":"1987-03-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-adhar-singh-dead-through-vs-bansi-dead-through-lrs-ors-on-6-march-1987"},"modified":"2015-04-01T23:19:49","modified_gmt":"2015-04-01T17:49:49","slug":"ram-adhar-singh-dead-through-vs-bansi-dead-through-lrs-ors-on-6-march-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-adhar-singh-dead-through-vs-bansi-dead-through-lrs-ors-on-6-march-1987","title":{"rendered":"Ram Adhar Singh (Dead) Through … vs Bansi (Dead) Through Lrs. & Ors on 6 March, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ram Adhar Singh (Dead) Through … vs Bansi (Dead) Through Lrs. & Ors on 6 March, 1987<\/div>\n
Equivalent citations: 1987 AIR 987, \t\t 1987 SCR (2) 595<\/div>\n
Author: A Sen<\/div>\n
Bench: Sen, A.P. (J)<\/div>\n
           PETITIONER:\nRAM ADHAR SINGH (DEAD) THROUGH LRS. & ORS.\n\n\tVs.\n\nRESPONDENT:\nBANSI (DEAD) THROUGH LRS. & ORS.\n\nDATE OF JUDGMENT06\/03\/1987\n\nBENCH:\nSEN, A.P. (J)\nBENCH:\nSEN, A.P. (J)\nERADI, V. BALAKRISHNA (J)\n\nCITATION:\n 1987 AIR  987\t\t  1987 SCR  (2) 595\n 1987 SCC  (2) 482\t  JT 1987 (1)\t704\n 1987 SCALE  (1)577\n\n\nACT:\n    U.P.   Zamindari   Abolition  and  Land   Reforms\tAct,\n1951--Section 21(1)(d)--Usufructuary mortgage by an occupan-\ncy  tenant--Not valid in eye of law--Mortgagee\tentitled  to\nretain possession only till repayment of mortgage debt.\n    Recovery  of Rents (Bengal) Act, 1859---Section  6--Usu-\nfructuary mortage of occupancy holding--Impermissible.\n    U.P.  Debt Redemption Act, 1940--All usufructuary  mort-\ngages became self-liquidating mortgages.\n\n\n\nHEADNOTE:\n    The\t first\trespondent's suit under Section 202  of\t the\nU.P.  Zamindari\t Abolition and Land Reforms  Act,  1951\t for\npossessing on payment of the mortgage money and ejectment of\nthe appellants under Section 21(1)(d) of the Act was resist-\ned  on the ground that the right of redemption stood  extin-\nguished in the year 1929 as the usufructuary mortgage  which\nwas executed when the Recovery of Rents (Bengal), Act,\t1859\nwas in force, was a valid one and the mortgagors, the prede-\ncessors\t in  interest of the respondent had lost  all  their\nrights titles and interest in the land. The Judicial Officer\ndismissed the suit.\n    On appeal, the Additional Commissioner decreed the first\nrespondent-plaintiff's\tsuit holding that  the\tusufructuary\nmortgage  of occupancy rights was valid only in a  qualified\nsense in that the appellants were entitled to retain posses-\nsion  until the mortgage debt was paid and that\t no  tenancy\nlaw  right from the Recovery of Rents (Bengal) Act, 1859  to\nU.P. Tenancy Act, 1939 ever made the occupancy rights trans-\nferable.\n    The\t appeal\t to the Board of Revenue  having  been\tdis-\nmissed,\t the appellants moved the High Court  under  Article\n226 and a Single Judge of the High Court dismissed the\twrit\npetition and upheld the order of the Board of Revenue.\n596\n    On appeal, the Division Bench held that the\t transaction\nof  the present kind was not a mortgage\t properly  so-called\nbut  yet  was  a  mortgage within  the\tmeaning\t of  Section\n21(1)(d) of the Act.\n    In appeal to this Court, challenging the correctness  of\nthe  view of the High Court, it was contended that both\t the\nBoard of Revenue as well as the High Court failed to  appre-\nciate that the usufructuary mortgage in question was execut-\ned  at a time when the Recovery of Rents (Bengal) Act,\t1859\nwas  in\t force, and that a usufructuary mortgage  was  valid\nunder Section 6 of the Act.\nDismissing the appeal, this Court,\n    HELD:  1.1 The settled law as administered in  the\tthen\nUnited\tProvinces  was that a usufructuary  mortgage  of  an\noccupancy  holding was invalid and there was no transfer  of\nan  interest by the occupancy tenant and the  mortgagee\t ac-\nquired\tno right other than the right to  retain  possession\nand fail back upon the stipulation in the so-called mortgage\nbond till his money was paid. [599C-D]\n    1.2 The view that a usufructuary mortgage by an occupan-\ncy tenant was not valid in the eye of law has been  accepted\nby  the\t Legislature in clause (d) of Section 21(1)  of\t the\nU.P. Zamindari Abolition and Land Reforms Act, 1951 and\t the\nmatter stands concluded by the doctrine of stare decisis. To\nhold  otherwise now would imply not only unsettling the\t law\nwhich  has  stood the test of time for over  100  years\t but\nwould  have  the effect of reopening transactions  past\t and\nclosed and unsettling titles. [599D-E]\n    2.1\t There\tis nothing in Section 6 of the\tRecovery  of\nRents  (Bengal) Act to suggest that a usufructuary  mortgage\nof an occupancy holding like the transaction in question was\npermissible. [599F]\n    2.2\t The right of occupancy tenant was not\ttransferable\nunder  Section 6 of the Act and in case of such\t a  transfer\nthe  tenant  would he deemed to have abandoned\tthe  holding\nand,  therefore, the right of an occupancy tenant cannot  be\nset  up by the purchaser in defence to a suit for  ejectment\nby the zamindar. [600B]\n    3. In the instant case, the relationship of the  parties\nwas regulated by the stipulations contained in the  mortgage\nbond  and  under the terms the appellants were\tentitled  to\nretain possession till the mortgage debt was paid off. Under\nthe U.P. Debt Redemption Act, 1940, all\n597\nusufructuary  mortgages became\tserf-liquidating  mortgages.\nThe  mortgage money would be deemed to have been  paid\toff.\n[600F-G]\n    Narendra  Narayan  Roy Chowdhary v. Ishan  Chandra\tSen,\n[1974] 13 Bengal LR 278; Khiali Ram v. Nathu Lal, ILR<\/a> [1893]\n15  All\t 219  (FB); Samharu v. Dharamraj  Pandey  and  Ors.,\n[1969]\tAll. LJ 943 (FB); Barhu Singh & Ors. v. Kharpattu  &\nOrs., [1956], All LJ 87 and Ram Prasad v. Bishambhar  Singh,\nAIR 1946 All 400, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 188
\nof 1974.\n<\/p>\n
    From the Judgment and Decree dated 25.8.72 of the  Alla-
\nhabad High Court in Special Appeal No. 223 of 1966.
\nP.P. Juneja for the Appellant.\n<\/p>\n
    Mrs. Rani Chhabra and Mrs. Rachna Gupta for the Respond-
\nents.\n<\/p>\n
The Judgment of the Court was delivered by
\n    SEN,  J. The short question involved in this’ appeal  on
\ncertificate  is\t whether a Division Bench of  the  Allahabad
\nHigh Court was right in following the decision of an earlier
\nDivision  Bench in Barhu Singh & Ors. v. Kharpattu  &  Ors.,
\n[1956]\tAll LJ 87, which was later reiterated in Samheru  v.
\nDharamraj  Pandey  & Ors., [1969] All LJ 943  (FB),  that  a
\nusufructuary mortgage of an occupancy holding was not  valid
\nas  a  mortgage with all its incidents and  subject  to\t the
\nprovisions  of law relating to usufructuary  mortgages,\t but
\nwas valid only to the limited extent that the mortgagee\t was
\nentitled  only\tto retain possession of the  land  mortgaged
\ntill there was repayment of the mortgage debt.
\n    The question arose in proceedings in a suit under  s.202
\nof  the U.P. Zamindari Abolition and Land Reforms Act,\t1951
\nfor  possession on payment of the mortgage money brought  by
\nrespondent No. 1 Bansi claiming himself to be an heir of the
\noriginal  mortgagors Sheo Balak and Ram Phal, on the  ground
\nthat  the appellants who were the successors-in-interest  of
\nthe  original mortgagee Bhairo Singh, had become asamis\t and
\ntherefore  liable to ejectment under s.21(1)(d) of the\tAct.
\nThe suit was resisted by the appellants on the ground  inter
\nalia that the usufructuary mortgage deed dated July 21, 1869
\nhaving\tbeen  executed when the Recovery of  Rents  (Bengal)
\nAct, 1859 was in force,
\n598<\/span>
\nwas a valid one and therefore the fight of redemption  stood
\nextinguished  in  the  year 1929 as a result  of  which\t the
\nmortgagors  Sheo  Balak and Ram Phal,  the  predecessors-in-
\ninterest of the respondents lost all their right, title\t and
\ninterest  in the land and thus the appellants could  not  be
\ntreated\t as asamis liable to ejectment under  s.21(1)(d)  of
\nthe  Act  but  had indeed become sirdars.  That\t defence  of
\ntheirs\tweighed with the Judicial Officer, Varanasi  who  by
\nhis  judgment  dated May 11, 1960 dismissed  the  plaintiffs
\nsuit.  On appeal by the respondents, the Additional  Commis-
\nsioner,\t Varanasi Division, Varanasi by his  judgment  dated
\nOctober\t 10, 1960 decreed the plaintiff’s suit holding\tthat
\nthe usufructuary mortgage of occupancy rights was valid only
\nin a qualified sense in that the appellants were entitled to
\nretain\tpossession  until the mortgage debt  was  paid.\t The
\nlearned Additional Commissioner observed that no tenancy law
\nfight from the Recovery of Rents (Bengal) Act, 1859 to\tU.P.
\nTenancy Act, 1939 ever made the occupancy fights  transfera-
\nble.  The  appellants preferred an appeal to  the  Board  of
\nRevenue but Shri S.N. Mitra, ICS, Judicial Member, Board  of
\nRevenue\t by  his  judgment and order dated  April  25,\t1963
\ndismissed  the appeal. The appellants moved the\t High  Court
\nunder  Art.  226 of the Constitution but  a  learned  Single
\nJudge by his judgment dated February 28, 1966 dismissed\t the
\nwrit petition and upheld the order of the Board of  Revenue.
\nOn  appeal,  a\tDivision Bench following  the  decisions  in
\nKhiali\tRam v. Nathu Lal, ILR<\/a> (1893) 15 All 219 (FB),  Barhu
\nSingh  v. Kharpattu (supra) and Samharu v. Dharamraj  Pandey
\n(supra)\t held that the transaction of the present  kind\t was
\nnot  a\tmortgage properly so-called but yet was\t a  mortgage
\nwithin the meaning of s.21(1)(d) of the Act.
\n    Shri Juneja, learned counsel for the appellants, who are
\nsuccessors-in-interest\tof  the\t original  mortgagee  Bhairo
\nSingh  strenuously assails the correctness of that view\t and
\ncontends that both the Board of Revenue as well as the\tHigh
\nCourt failed to appreciate that the usufructuary mortgage of
\nthe occupancy holding in question was executed by Sheo Balak
\nand  Ram Phal, the predecessors-in-interest of the  respond-
\nents,  on Asadh Sudi 12 Samvat 1925, corresponding  to\tJuly
\n21, 1860 i.e. at a time when the Recovery of Rents  (Bengal)
\nAct,  1859  was in force. He presses  into  service  certain
\nobservations  of Sir Richard Couch, CJ in  Narendra  Narayan
\nRoy Chowdhary v. Ishan Chandra Sen, [1974] 13 Bengal LR\t 278
\nfor  the submission that a usufructuary mortgage  was  valid
\nunder  s.6 of that Act. We find it difficult to\t accept\t the
\ncontention.\n<\/p>\n
We find that it has been the consistent view of the  Allaha-
\nbad
\n599<\/span>
\nHigh  Court  that a usufructuary mortgage  of  an  occupancy
\nholding\t was not valid as a mortgage with all its  incidents
\nand subject to the provisions of law relating to  usufructu-
\nary mortgage but was valid only in a qualified sense i.e. in
\nthe  sense of subletting with a covenant that the  mortgagor
\nwill  not be entitled to recover possession without  payment
\nof  the mortgage money, and further that under such a  mort-
\ngage  there  is\t no transfer of the right  of  an  occupancy
\ntenant and consequently no suit for redemption was maintain-
\nable  nor  was there any extinguishment of the right  of  an
\noccupancy tenant upon the expiry of the period of limitation
\nfixed  for redemption under Art. 148 of the Limitation\tAct,
\n1908.  There is a long catena of decisions dealing with\t the
\nquestion starting from Khiali Ram v. Nathu Lal<\/a> (supra)\tdown
\nto  Samharu v. Dharamraj Pandey (supra). It follows that  it
\nhas been the settled law as administered in the then  United
\nProvinces  that\t a  usufructuary mortgage  of  an  occupancy
\nholding was invalid and there was no transer of an  interest
\nby  the occupancy tenant and the mortgage acquired no  other
\nright  other  than the right to retain possession  and\tfall
\nback  upon  the stipulation in the so-called  mortgage\tbond
\ntill  his money was paid. As pointed out in the\t Full  Bench
\ndecision  in Samharu v. Dharamraj Pandey (supra),  the\tview
\nthat a usufructuary mortgage by an occupancy tenant was\t not
\nvalid in the eye of law has been accepted by the Legislature
\nin cl.(d) of s.21(1) of the U.P. Zamindari Abolition &\tLand
\nReforms\t Act,  195  1. The matter stands  concluded  by\t the
\ndoctrine  of stare decisis. If we were to subscribe  to\t the
\ncontention  advanced by the learned counsel for\t the  appel-
\nlants, it would imply not only unsettling the law which\t has
\nstood  the test time for over 100 years but have the  effect
\nof  reopening  transactions past and closed  and  unsettling
\ntitles all over the State.\n<\/p>\n
    We\talso find no substance in the  contention  advanced.
\nThere  is nothing in s.6 of the Recovery of  Rents  (Bengal)
\nAct to suggest that a usufructuary mortgage of an  occupancy
\nholding\t like the transaction in question  was\tpermissible.
\nSir  Richard  Couch,  CJ in the course of  his\tjudgment  in
\nNarendra Narayan Roy Chowdhary’s case has referred to s.6 of
\nthat  Act which, in terms, made the holding of an  occupancy
\ntenant\ta  non-transferable tenure. After referring  to\t the
\nprovision  contained in s.6 which provided for conferral  of
\noccupancy rights on a ryot who was in cultivating possession
\nof  his\t land for a period of 12 years,\t the  learned  Chief
\nJustice unequivocally stated that the occupancy rights\twere
\nnot transferable:\n<\/p>\n
“The ordinary construction of the word appears to me to\t be,
\nthat the right is only to be in the person who has
\n600<\/span>
\noccupied  for 12 years, and it was not intended to give\t any
\nright of property which could be transferred.”
\nAfter  holding\tthat the right of occupancy tenant  was\t not
\ntransferable under s.6 of the Act, the learned Chief Justice
\nwent  on  to observe that in case of such  a  transfer,\t the
\ntenant\twould  be deemed to have abandoned the\tholding\t and
\ntherefore the right of an occupancy tenant cannot be set  up
\nby  the purchaser in defence to a suit for ejectment by\t the
\nzamindar:\n<\/p>\n
\t      “Now,  if a ryot having a right  of  occupancy
\n\t      endeavours  to transfer it to another  person,
\n\t      and, in fact, quits his occupation, and ceases
\n\t      himself  to  cultivate or hold  the  land,  it
\n\t      appears  to me that he may be rightly  consid-
\n\t      ered  to\thave abandoned his right,  and\tthat
\n\t      nothing is left in him which would prevent the
\n\t      zamindar\tfrom recovering the possession\tfrom
\n\t      the person who claims under the transfer.”\n<\/p><\/blockquote>\n
That very eminent Judge explained this in another way:\n<\/p>\n
\t      “(I)f  the right which is given by the law  is
\n\t      one  which exists only so long as he holds  or
\n\t      cultivates  the  land, when he  ceases  to  do
\n\t      that,  by selling his supposed right and\tput-
\n\t      ting  another in his place, his fight is\tgone
\n\t      and cannot stand in the way of the  landlord’s
\n\t      recovering possession.”\n<\/p><\/blockquote>\n
We  fail to appreciate how these observations can be of\t any
\navail  to  the appellants. The view expressed by  Couch,  CJ
\nthat  the  right  of an occupancy tenant under\ts.6  of\t the
\nRecovery  of Rents (Bengal) Act does not lay down  any\tcon-
\ntrary  principle.  As to the question  of  abandonment,\t the
\nrelationship  of the parties was regulated by  the  stipula-
\ntions contained in the mortgage bond and under the terms the
\nappellants  were  entitled  to retain  possession  till\t the
\nmortgage  debt was paid of. we wish to point out that  under
\nthe  U.P. Debt Redemption Act, 1940 all\t usufructuary  mort-
\ngages became self-liquidating mortgages. As held by the High
\nCourt  in Ram Prasad v. Bishambhar Singh, AIR 1946 All\t400,
\nthe mortgage money would be deemed to have been paid off.
\nFor  these  reasons, the appeal must fail and  is  dismissed
\nwith costs.\n<\/p>\n
N.P.V.\t\t\t\t\t\t      Appeal\ndismissed.\n?601\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ram Adhar Singh (Dead) Through … vs Bansi (Dead) Through Lrs. & Ors on 6 March, 1987 Equivalent citations: 1987 AIR 987, 1987 SCR (2) 595 Author: A Sen Bench: Sen, A.P. (J) PETITIONER: RAM ADHAR SINGH (DEAD) THROUGH LRS. & ORS. Vs. RESPONDENT: BANSI (DEAD) THROUGH LRS. & ORS. DATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-9625","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRam Adhar Singh (Dead) Through ... vs Bansi (Dead) Through Lrs. & Ors on 6 March, 1987 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-adhar-singh-dead-through-vs-bansi-dead-through-lrs-ors-on-6-march-1987\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Adhar Singh (Dead) Through ... vs Bansi (Dead) Through Lrs. & Ors on 6 March, 1987 - 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