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Judgment
Ross, J.—This is an appeal by defendant No. 1 against a decree of the learned Subordinate Judge of Patna in a suit brought by the plaintiff respondent for recovery of possession of 51 acres of land in the following circumstances.
The plaintiff claims to be the proprietor of 16 annas of Mauza Simli Morarpur, touzi No. Samclat in which the land in suit is situated. The land was formerly the occupancy holding of two brothers, Nokha Mahto and Una Mahto. Nokha Mahto died leaving a widow, Musammat Bhatni. On his death the holding went by survivorship to his brother Una, who mortgaged it to defendant No. 1, on "the 18th of November 1912. According to the allegation in the plaint which is not traversed in the written statement, Una Mahto died in the month of Poos 1326, that is, January 1919. On the 12th of January 1919, Musammat Bhatni, who had entered into possession of the holding on Una''s death, entered a deed of sale of the holding in favour of defendant No. 1, in consideration of the dues under the earlier mortgage and of a sum of Rs. 50 advanced for the sradh of Una Mahto. The defendant No. 1 entered into possession of the property. The plaintiff claiming the property by right of reversion on the death of the last tenant without heirs settled it with defendant No. 2. Criminal proceedings between defendant No. 1 and defendant No. 2 having terminated unfavourably to the latter, the plaintiff brought this suit.
The defendant pleaded that Musammat Bhatni lawfully entered into possession on the death of Una and conveyed the holding to him for legal necessity and that he was recognized by the landlords as tenant and, therefore, could not be ejected.
The learned Munsif held that Musammat Bhatni, being a brother''s widow, was no heir under the Hindu Law. He found, however, that she was entitled to maintenance out of the entire property left by Una and that the landlord had no right to take possession of the land. He further found that she was in possession and that subsequently to the conveyance the defendant No. 1 was in possession and was recognized as tenant by one of the maliks, an noo Lal. He also found that the sale was for legal necessity and was valid and consequently he dismissed the suit.
On appeal the learned Subordinate Judge agreed with the finding of the Munsif that Musammat Bhatni was not a heir of Una Mahto. Differing from the Munsif he held that she had no right to convey the land and the conveyance conferred no title on the purchaser. He further held on the authority of Muktakeshi Dasi v. Pullin Behari Singh 1 Ind. Cas. 155 : 13 C.W.N. 12 : 8 C.L.J. 324. that on the death of the last tenant without heirs the security of the mortgage created by him was extinguished. He was also of opinion that the fact that Musammat Bhatni sold the holding to defendant No. 1 showed that she had No. intention to charge it with her maintenance, and there was in fact no charge upon. the property for her maintenance; and, in the result, he decreed the suit.
In second appeal it is contended that as the plaintiff is only a co-sharer landlord, the most he is entitled to is joint possession with the defendant and that as he has framed his suit in ejectment, even this relief should not be given. It is further contended that the case of Muktakeshi Dasi v. Pulin Behari Singh 1 Ind. Cas. 155 : 13 C.W.N. 12 : 8 C.L.J. 324. was wrongly decided and that if the landlord is entitled to the property, he must take it subject to the mortgage.
With regard to the first point the learned Counsel for the respondents has shown that in the grounds of appeal in the Court below it was stated that the learned Munsif was wrong in considering that the plaintiff was only a co-sharer landlord and ought to have considered that he was the 16 annas landlord; and consequently the receipts granted by Kannoo Lal did not relate to the land in suit. He contended that, this point was clear and was not disputed and that the decision of the learned Subordinate Judge was on the basis, that the plaintiff was the sole landlord. Now in the written statement, although it is pleaded, that the landlord recognized the defendant No. 1 as tenant and recorded his name and granted him receipts, yet the statement in the plaint that lie plaintiff is the 16 annas landlord is not expressly denied. In the judgment of the learned Subordinate Judge there is no reference to the finding of the Munsif that the plaintiff was a co-sharer landlord and there is no discussion of this point. In view of the fact that the suit was decreed in fall, it must be taken that the judgment proceeded on the basis that the plaintiff was the sole landlord and the inference to be drawn is that the case was argued on that footing. This view finds support in the fact that the learned Subordinate Judge has not referred to or discussed the effect of the receipts granted by Kannoo Lai. I shall, therefore, deal with the case on the footing that the plaintiff is the sole landlord of the village in which the land in suit is situated.
The question then is what situation arose in law on the death of Una Mahto without heirs, because it was not contended for the appellant that Musammat Bhatni was a heir. Section 26 of the Bengal Tenancy Act occurs in Ch. V which deals with occupancy rights and lays down the law for the devolution of the occupancy right as follows: "If a raiyat dies intestate in respect of a right of occupancy, it shall, subject to any custom to the contrary, descend in the same manner as other immovable property: provided that in any case in which under the law of inheritance to which the raiyat is subject his other property goes to the Crown, his right of occupancy shall be extinguished." This seems to mean that although the other property of an occupancy raiyat dying intestate escheats to the Crown, his occupancy right does not escheat to the Crown but is extinguished. This does not mean that the holding ceases to exist but only that the occupancy right is terminated, as in the case of transfer of an occupancy right to a person jointly interested in the land as proprietor. Earn Mohan Pal v. Sheikh Kachu 32 C. 380 : 9 C.W.N. 249 : 1 C.L.J. 1 (F.B.). The holding is then a holding without a tenant and must revert to the landlord. This right of the landlord to the reversion where there are no heirs is clear on principle and is recognised by implication in Sonet Kooer v. Himmut Baha-door 1 C. 391 : 25 W.R 239 : 3 I.A. 92 : 3 Sar. P.C.J. 608 : 3 Suth. P.C.J. 257 : 1 Ind. Dec. (n.s.) 245 and is expressly recognised by this Court in Sri Kanta Prasad v. Jag Sah 84 Ind. Cae. 293 : 6 P.L.T. 237 : 3 Pat. 818 : 1925 AIR Pat 57. So far a,s the decision in Muklakeshi Dasi v. Pnlin Behari Singh 1 Ind. Cas. 155 : 13 C.W.N. 12 : 8 C.L.J. 324. is to the contrary effect, 1 would respectfully differ from it.
The question then is, what reverted to the landlord? In Collector of Masulipatam v. Cavaly Vencata Narrainapah 8 M.I.A. 500 : 2 W.R.P.C. 59 : 1 Suth P.C.J. 417 : 1 Sar. P.C.J. 752 : 19 E.R. 620. and in Collector of Masulipatam v. Cavaly Vencata Narrainapah 8 M.I.A. 529 : 2 W.R.P.C. 61 : 1 Stith. P.C.J. 476 : 1 Sar. P.C.J. 820 : 19 E.R. 631. and in Cavaly Vencata Narrainapah v. Collector of Masulipatam 11 M.I.A. 619 : 10 W.R.P.C. 47 : 2 Suth P.C.J. 103 : 2 Sar P.C.J. 338 : 20 E.R. 233, it was held in dealing with the escheat of a. zeminolari to the Crown that a mortgagee by a mortgage created by the last holder was entitled as against the Crown, who took the estate by escheat on the death of the widow for want of heirs, to possession of the, estate under the mortgage as security for the amount advanced and interest, subject to the equity of redemption by the Crown. If property escheats to the Crown subject to equities, there can be no reason why it should not revert to the landlord on the same terms. The question whether the holding In the present case reverts subject to the mortgage created by the last holder depends on whether the holding-was transferable or not. Now in this case the transferability of the holding has never been questioned, but has been assumed. The transfer to defendant No. 1 is referred to in the plaint, but it is not questioned on the ground of non-transferability. If the last holder had sold the holding the landlord would have got nothing; as he has transferred it by way of mortgage, the landlord gets only, the right to redeem. It seems clear that where a tenant can legally alienate or encumber his holding, as in the present case, and that holding reverts to the landlord on the death of the tenant in testate without heirs, what reverts is the estate that was in the tenant as encumbered by him, diminished, of course, by virtue of Section 26, by the loss of the occupancy right. Now, Una Mahto mortgaged this holding to the defendant No. 1. The conveyance from Musammat Bhatni may be, and, in my opinion, is, without legal effect. But the position of the defendant No. 1 is at least that of a mortgagee in possession and he is entitled to retain possession until he is redeemed by the landlord or until his tenancy is otherwise lawfully determined. It is unnecessary to consider the decision of Muktakeshi Dasi v. Pulin Behari Singh 1 Ind. Cas. 155 : 13 C.W.N. 12 : 8 C.L.J. 324. in this connectionips that was a case of nontransferable holding.
In Cavaly Vencata Narrainapah v. Collector of Masulipatam 11 M.I.A. 619 : 10 W.R.P.C. 47 : 2 Suth P.C.J. 103 : 2 Sar. P.C.J. 338 : 20 E.R. 233. the Judicial Committee observed as follows at page 636. 11 M.I.A. "This declaration is fatal to the respondent''s claim to immediate possession of the zemindari, but it will leave the equity, if it shall be so minded, in a suit properly framed for that purpose. It has, however, been suggested at the Bar that provision for redemption might be made in this suit. If. The parties can agree as to the terms of redemption, their Lordships must recommend to Her Majesty, as a consequence of the before-mentioned declaration is, that the respondent''s suit stand dismissed, without prejudice to the right of the Crown to redeem." In my opinion, the order to be made in the present case ought to follow the terms of that decision of the privy council.
The result is that the appeal must succeed and there will be a declaration that the plaintiff has a right to redeem the holding in suit and that if the parties can agree within fifteen days as to the terms of redemption, these terms will be embodied in the decree of this court; and, in that case, each party will bear his own costs throughout. But if they do not so agree then the appeal will stand decreed and the plaintiff�s suit will be dismissed with costs throughout, without prejudice to his right to redeem.
Mullick, J.
I agree.