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PETITIONER: MAHABIR GOPE AND OTHERS

       Vs.

RESPONDENT: HARBANS NARAIN SINGH AND OTHERS.

DATE OF JUDGMENT: 14/04/1952

BENCH: AIYAR, N. CHANDRASEKHARA BENCH: AIYAR, N. CHANDRASEKHARA MAHAJAN, MEHR CHAND BOSE, VIVIAN

CITATION:  1952 AIR  205            1952 SCR  775  CITATOR INFO :  A          1956 SC 305  (11)  R          1958 SC 183  (7,10,14)  E          1966 SC1721  (9)  D          1968 SC1466  (7)  R          1972 SC 637  (4)  R          1980 SC 696  (10,11)  RF         1981 SC1881  (17)  RF         1981 SC2146  (8,11,14)  RF         1988 SC 299  (8)  RF         1989 SC 436  (38,42)

ACT:    Bihar  Tenancy Act, 1937, ss. 5 (2),  20,  21--Zuripeshgi lease-  Lease  by mortgagee for a term  of  3  years--Lessee continuing in possession for over 30 years--Whether acquires occupancy rights-Construction of lease--Mortgagee’s power to lease--Limitations-Transfer  of Property Act, (IV of  1882), s. 76 (a) and (e).

HEADNOTE:    As  a general rule a person cannot transfer or  otherwise confer  a better title on another than he himself has and  a mortgagee cannot therefore create an interest in   mortgaged property  which  will enure beyond the  termination  of  his interest  as mortgagee.  Further, a mortgagee cannot  during the  subsistence     of the mortgage act in a manner  detri- mental  to  the mortgagor’s interests, such as by  giving  a lease  which  may  enable the tenant  to  acquire  permanent occupancy rights in the land, thereby defeating the  mortga- gor’s right to khas possession.    A  permissible  settlement by a mortgagee  in  possession with  a tenant in the course of prudent management  and  the springing up of rights in the tenant conferred or created by statute  based on the nature of the land and possession  for the  requisite period is an exception to the  general  rule, but  to  fall within this exception the  settlement  of  the tenant  by  the mortgagee must have  been a bona  fide  one. The  exception will not apply in a case  where the terms  of the mortgage prohibit the mortgagee from making any  settle- ment of tenants on the land either expressly or by necessary implication.

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 Where  a zuripeshgi ijara deed contained  the  following clause: "It is desired that the ijaradars should enter  into possession  and   occupation of the share let out  in  ijara (being the kkudkasht land under his own cultivation), culti- vate them, pay 2 as. as reserved rent year after year to us, the  executants,  and appropriate the produce  thereof  year after year on account of his having the ijara interest"  and the  kabuliat executed by the tenant to whom the lands  were leased by the mortgagee for a period of 3 years referred  to the  ijara deed and contained an express provision  that  he (the  tenant) would give up possession of the tika  land  on the  expiry  of the lease without urging any  claim  on  the score that the lands were his kasht lands: Held,  confirming the decision of the High Court, that the settlement was  not a  bona fide one and the successors of the tenant  (the  de- fendants) did not acquire permanent rights of occupancy in 101 776 the  demised lands under the Bihar Tenancy Act  even  though the  lands had been in the occupation of the tenant and  his successors for over 30 years after the expiry of the lease.     Held  further,  that the defendants  could  not  acquire occupancy   rights  under sections 20 and 21  of  the  Bihar Tenancy Act as the mortgagee was neither a "proprietor"  nor a  "tenure-holder"  or "under-tenure-holder" and the  tenant and  his successors were not, therefore,  "settled  raiyats" within the meaning of section 5, cl. (2), of the said Act.     Manjhil-Lal  Biswanath  Shah Deo.  v.  Shaikh  Mohiuddin (I.L.R.  24  Cal. 272). Babu Bairo Nath Ray  v.Shanke  Pahan (I.L.R. 8 Pat. 31) and Binda Lal Pakrashi and Others v. Kalu Pramanik and Others (I.L.R. 20 Cal. 708) distinguished.

JUDGMENT:     CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 143  of 1951.  Appeal by special leave from the judgment and  decree dated  23rd March,-1950, of the High Court of Judicature  at Patna (Reuben and Jamuar JJ.) in appeal from Original Decree No. 206 of 1946 arising out of a decree dated 31st  January, 1946,  of the Subordinate Judge at Patna in Title  Suit  No. 55/4 of 1943-45. Saiyid Murtaza Fazl Ali for the appellants.     N.C. Chatterjee (A. N. Sinha, with him)for the  respond- ents Nos. 1 to 9.     B.K. Saran for the respondents Nos. 11 to 16.      1952.  April 14.  The Judgment of the Court was  deliv- ered by      CHANDRASEKHARA  AIYAR  J.--This  is an  appeal  by  the defendants from a decree of the Patna High Court reversing a decree  of the Subordinate Judge’s Court at Patna,  and  de- creeing  the  plaintiffs’ suit for  possession  against  the defendant  first  party who may be called for  the  sake  of convenience as ’the Gopes’.      The  lands were khudkhasht lands, partly  belonging  to the plaintiffs first party and partly belonging to Mussammat Anaro  Kuer, from whom the plaintiffs second and third  par- ties  trace title.  The ancestors of plaintiffs first  party gave on 28-9-1899 an ijara with possession to one  Lakhandeo Singh an ancestor of the defendant second party under Exhib- it I (b) for a term 777 of six years from 1307 Fasli to 1312 Fasli for Rs. 540.  The poshgi money was to be repaid in one lump sum at the end  of Fasli  1312.  If there was no redemption then the ijara  was

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to  continue in force till the money was repaid.   Mussammat Anaro  Kuer  gave her share in ijara to the  same  Lakhandeo Singh orally on 10th June, 1905, for a period of three years for Rs. 542. Lakhandeo Singh, who is represented now by  the defendant  second party, made a settlement of the land  thus got by him (8.26 acres or 13 bighas in all) with one Ram Lal Gope  an ancestor of the defendant first party for a  period of  three years from Fasli 1315 to Fasli 1318.  There was  a patta  in-favour of the tenant and a kabuliyat in favour  of the  landlord. This was in 1908.  The mortgage was  redeemed in  June 1942 by payment in proceedings under section 83  of the  Transfer of Property Act,  When the plaintiffs went  to take possession, they were resisted by the Gopes  (defendant first  party), and after unsuccessful criminal  proceedings, the  plaintiffs  filed the present  suit.   The  Subordinate Judge  dismissed  it, holding that the  Gopes  were  raiyats having  acquired permanent occupancy rights in the lands  as the  result  of the settlement by the  mortgagee,  Lakhandeo Singh.  On appeal the High Court set aside this decision and gave  the plaintiffs a decree for possession on the  finding that  the defendants were not raiyats and had  no  permanent rights  of occupancy.  This court granted to the  defendants special leave to appeal.   The suit was in the alternative for recovery of the  value of  the lands as compensation or damages from the  defendant second  party in case it was found that the defendant  first party  could not be ejected.  The trial court  decreed  this alternative claim and awarded to the plaintiffs compensation at  the  rate of Rs. 200 per bigha.   The  defendant  second party  carried  the matter in appeal to the High  Court  and succeeded. But we have nothing to do with this matter in the present appeal.     At the trial, the plaintiffs alleged and maintained that the lands were their zirat lands within the meaning SUPREME 778 of section 116 of the Bihar Tenancy Act and that the defend- ant first party could acquire no rights of occupancy in  the same.   The Subordinate Judge found against this  contention and held that they were khud kasht or   bakasht lands of the proprietor, in which rights of occupancy can be acquired  He negatived  the plea of the defendants that they  were  their ancestral  raiyati   lands.  He also held that there was  no collusion between the mortgagee Lakhandeo Singh and Ram  Lal Gope  in  the matter of settlement of lands.  It is  on  the basis  of  these findings which were accepted  by  both  the parties that the hearing of the appeal proceeded before  the High Court.      It  was  held  by the Privy Council  in  Bengal  Indigo Company v. Roghobur Das(1) that "a zuripeshgi lease is not a mere contract for the cultivation of the land at a rent, but is  a security to the tenant for the money advanced".   They observed,  speaking  of the leases before  them,  that  "the leases in question were not mere contracts for the  cultiva- tion  of the land let; but that they were also  intended  to constitute, and did constitute, a real and valid security to the tenant for the principal sums which he had advanced, and interest  thereon.  The tenants’ possession under them  was, in part at least, not that of cultivators only, but that  of creditors  operating repayment of the debt due to  them,  by means of their security."  These words  apply  to the ijara deed before us; its dominant  intention was  to provide a security for the loan advanced and not  to bring  into existence any relationship of landlord and  ten- ant.The general rule is that a person cannot by transfer  or

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otherwise  confer a better title on another than he  himself has.  A mortgagee cannot, therefore, create an  interest  in the mortgaged property which will enure beyond the  termina- tion  of his interest as mortgagee. Further, the  mortgagee, who takes possession of the mortgaged property, must  manage it  as a person of ordinary prudence would manage it  if  it were  his own; and he must not commit any act which  is  de- structive (1) (1897) 24 Cal. 272. 779 or  permanently injurious to the property; see  section  76, sub-clauses  (a) & (e)of the Transfer of Property  Act.   It follows  that he may grant leases not extending  beyond  the period of the mortgage; any leases      granted by him  must come to an end at redemption. A mortgagee cannot during  the subsistence  of the mortgage act in a manner detrimental  to the  mortgagor’s interests such as by giving a  lease  which may  enable  the tenant to acquire  permanent  or  occupancy rights  in the land thereby defeating the mortgagor’s  right to  khas  possession; it would be an act  which  would  fall within  the provisions of section 76, subclause (e), of  the Transfer of Property Act.      A  permissible settlement by a mortgagee in  possession with  a tenant in the course of prudent management  and  the springing up of rights in the tenant conferred or created by statute  based on the nature of the land and possession  for the  requisite period is a different matter altogether.   It is an exception to  the general rule.  The tenant cannot  be ejected  by the mortgagor even after the redemption  of  the mortgage.  He may become an occupancy raiyat in  some  cases and a non-occupancy raiyat in other cases.  But the  settle- ment  of the tenant by the mortgagee must have been  a  bona fide one.  This exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement  of  tenants on the land either expressly  or  by necessary implication.      Where all the zamindari rights are given to the mortga- gee, it may be possible to infer on the proper  construction of the document that he can settle lands with tenants in the ordinary course of management and the tenants might  acquire certain rights in the land in their capacity as tenants.  In the  case of Manjhil-Lal Biswa Nath Shah Deo v.  Shaikh  Mo- hiuddin(1),  there was a bona fide settlement  of  mortgaged rayati  land by the mortgagee with tenants and it  was  held that  the  mortgagor was not entitled to  evict  them  after redemption.  The earlier decision of Babu Bhairo Nath Ray v. Shanke Pahan(2), related to bakasht lands, and (1) (1927) 8 Pat. L.T. 92.  (2) (1929) I.L.R. 8 Pat.31. 780 there  was no provision in the zuripeshgi lease  restricting the  power of the mortgagee lessee as regards settlement  of tenants.   Khudkasht lands and bakasht lands are  really  in the nature of raiyati lands which come  into the  possession of the proprietor by surrender, abandonment or purchase.     In the present case. we have the following clause in the ijara  deed: "It is desired that the ijaradar  should  enter into possession and occupation of the share let out in ijara (being the khudkasht land under his own cultivation), culti- vate  them, pay 2 annas as reserved rent year after year  to us, the executants, and appropriate the produce thereof year after year on account of his having the ijaradari interest." This term disentitles the mortgagee from locating tenants on the  land mortgaged.  Ram Lal Gope, the grandfather  of  the defendants  first party, who executed the kabuliat  in  1908 must have known of the title of Lakhandeo Singh the  mortga-

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gee  and the terms under which he held the lands  under  the registered  zuripeshgi ijara deed and this is most  probably why  the  tenant not only took the lease for a period  of  3 years,  but expressly undertook to give up  possession  over the thika lands on the expiry of the period of lease without urging  any claim on the score that the lands were  his  old kasht  lands. His kabuliat (Exhibit 11) in  fact  refers  to Lakhandeo  Singh’s  ijaradari  interest. In  view  of  these facts, the learned Judges of the High Court stated that they were  not  prepared to hold that the settlement was  a  bona fide one or the mortgagee was within his rights in  settling these lands.     Strong  reliance  was placed for the appellants  on  the Full  Bench decision Binad Lal Pakrashi and Others  v.  Kalu Pramanik  and  Others (1) where it was held  that  a  person inducted  into  possession  of land as a raiyat  even  by  a trespasser became a non-occupancy raiyat within the  meaning of  section 5, sub-section, 2 of the Bengal Tenancy Act  and was  protected from ejectment.  But this decision  has  been subsequently (1) (1893) I.L.R. 20 Cal. 708.     781 explained away in several cases as based on the  proposition that  the rights must have been bona fide acquired  by  them from one whom they bona fide believed to’ have the right  to let them into possession of the land. Such, however, is  not the case here, in view of the recitals in the ijara deed  in favour of Lakhandeo Singh and the kabuliat by Ram Lal Gope.     Sections  20 and 21 of the Bihar Tenancy Act  were   re- ferred  to by the learned counsel for the appellants in  the course of his arguments and he pointed out that the land  in this  case was held’ continuously by his clients  and  their predecessors from 1908 to 1942, when they were sought to  be ejected.   For  these  sections to apply, we must  be  in  a position  to hold that the appellants were  "settled   raiy- ats".  "Raiyals" is defined in sub-clause 2 of section 5  as meaning "primarily a person who has acquired a right to hold land  for  the purpose of cultivating it by  himself  or  by members of his family  ......  "  Sub-clause 3 provides that a person shall not be deemed to be a raiyat unless he  holds land  either immediately under a proprietor  or  immediately under a tenure-holder.  Lakhandeo Singh was not a  "proprie- tor"  by  which term is meant a person  owning,  whether  in trust  or for his own benefit, an estate or part of  an  es- tate:   he was only a mortgagee. Nor was he a  tenure-holder or under-tenureholder, as he does not comply with the  defi- nition  given  in  sub-clause (1) of section  5,  namely,  a person  who had acquired from a proprietor or  from  another tenure-holder  a right to hold land for the purpose of  col- lecting rents, or for the purpose of bringing the land under cultivation  by  establishing tenants on it. Such  proof  as there is in this case only goes to show that the lands  were under  the cultivation of the plaintiffs and that they  were made  over  to the possession of the mortgagee  so  that  he might cultivate them himself.  Hence, Ram Lal Gope could not claim  that he was a settled raiyat of the village and  that under  the statute he secured occupancy rights in the  lands Which he took on lease from Lakhandeo Singh. 782     Lastly,  it was urged that the ijara by Mst. Anaro  Kuer was admittedly an oral transaction and there was no proof of any  prohibition against the settlement with tenants so  far as her share (3.97 acres) was  concerned and that the rights of the parties as regards this area would stand on a differ- ent footing from the rights in respect of the 4 acres and 29

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cents  belonging to the plaintiff first party.   This  point was not taken in the courts below where the two ijaras given to Lakhandeo Singh were dealt with as if they were part  and parcel  of  one  and the same transaction,  the  rights  and liabilities,  whatever they were, being common to both.   We cannot allow the point to be taken now.      The  result  is that the High  Court’s decree  is  con- firmed and the appeal is dismissed with costs of the  plain- tiffs  respondents.  There will be no order as to  costs  of the other respondents.            Appeal dismissed. Agent for the appellants: S.P. Varma. Agent for the respondents Nos. 1 to 9: M.M. Sinha.      Agent for the  respondents Nos. 11  to  16: K.L. Mehta.