Ram Dhan vs Basanta and Another

D.B. Lal, J.—This second appeal is directed against the judgment of the Additional District Judge, Bilaspur, in a suit for pre-emption instituted by Ram Dhan against Basanla and Smt. Mathru in respect of land khasra Nos. 21 and 22, measuring big has 4.6 situated in village Majhasu, Pargana Tiun, District Bilaspur, where in affirming the decision of the Senior Sub-Judge, Bilaspur, he has decreed the suit but has refused to give actual possession over the disputed land to the Plaintiff Ram Dhan. The allegations made by the Plaintiff were, that one Jiunu was his real brother and he created occupancy rights in the disputed land in favour of Basanla in the year 1947 by executing a written document to that effect. The consideration for conferring occupancy rights was Rs. 475 which was received by Jiunu. After the creation of such occupancy rights, Ram Dhan Plaintiff filed a suit in the year 1949 for a declaration that under the custom with which the parties were governed, Jiunu could not make a transfer of the ancestral land so as to create occupancy rights without lawful necessity. The trial Court found that legal necessity did exist for a part of the consideration which was Rs. 100 but not for the remaining part of the consideration. Jiunu died during the pendency of that suit and Smt. Mathru Respondent was brought on record as his legal representative. The suit was decreed for a declaration of action and that the Plaintiff had no right to sac.

As stated before, the learned trial Court has '' decreed the suit and has repelled all the objections of Basanta, except this one that he cannot be made to part with the land. The decree for pre-emption was passed directing the Plaintiff Ram Dhan to deposit a sum of Rs. 280 in the Court before he gets back the proprietary rights in his favour. The decree also recited has actual possession would continue with Basanta who would be occupancy tenant. The Plaintiff-appellant Ram Dhan preferred his first appeal before the learned Additional District Judge and as I have stated before his appeal has been dismissed.

The Plaintiff-appellant has felt aggrieved of the decision of the two Courts below and has preferred this second appeal.

The learned Counsel for the appellant has confincd his argument to the question as to whether occupancy rights have survived in favour of Basanta so that physical possession could be retained by him. The learned Counsel pointed out that the effect of the declaratory decree given in the previous suit between the parties would have to be considered. The other question that would arise relates to merger of occupancy rights in the proprietary rights conferred upon Basanta as a result to the sale effected.

The learned Counsel was rather emphatic when he submitted that the effect of the declaratory decree would be of far-reaching importance. It appears to us that it would not be so. The declaratory decree only laid down that the occupancy rights would hold good upto the life-time of Shrimati Mathru and on the date of her death, succession would open to Jiunu and whoever is found entitled to succeed as his heir, would get the property free of occupancy rights. A further direction was given that before taking possession of such occupancy rights, he would pay Rs. 100 to Basanta. Under the provisions of the Punjab Custom (Power to Contest Act No. II of 1920, Shrimati Mathru or her daughter Ayodhya were not entitled to question the alienation of the ancestral immovable property. Ram Dhan could, of course, question the alienation and that is why he filed the declaratory suit. Jiunu died during the pendency of the suit and Shrimati Mathru was brought on record. The dispute related to the legal necessity in respect of the consideration obtained by Jiunu for transferring occupancy rights. The dispute went upto the learned Judicial Commissioner and the declaratory decree in the terms stated above was granted. A decree of like nature in favour of presumptive reversioner does not pass any title in his favour nor does it create any right in the property alienated. It is held by the court that the alienation by a limited owner Would not affect rights of the reversioners at the time the succession opens. The only effect of the decree is that the alienation is valid for the life-time of the aileron and would be invalid thereafter. In support of this, reliance can be placed on the observations made in Jagdish alias Johandoo v. Brahma 1971 HLR 16, Therefore, Besarta during the life-time of Mathru uptil the date of the sale which he got from her, remained occupancy tenant. A subsidiary interest was created by Jiunu in favour of Basanta, namely occupancy rights in the land. The proprietary interest rested with Jiunu and was inherited by Shrimati Mathru. The declaratory decree related to the subsidiary interest and if by operation of law such subsidiary interest merged in the primary interest, namely the proprietary interest, the effect of the declaratory decree was set at naught. Therefore, it would be wrong to slate that the declaratoiy decree had its consequence even after the sale which was made by Shrimati Mathru in favour of Basanta. The question pertaining to the sale and its impact on the right of pre emption which accrued in favour of the Plaintiff, as well as the question as to whether merger of occupancy rights took place as a result to that sale are not in any manne a Heeled by the declaratory decree.

In this connection, the learned Counsel for the Respondent [jointed out Section 7 of the Punjab Limitation (Custom) Act No. I of 1920 and submitted that Ram Dhan should have brought a suit for possession within a period of three years from the dale on which the right to sue accrued in his favour. According to the learned Counsel, he should have brought either an independent suit for possession or he should have prayed for a specific relief of possession u/s 7 of the said Act in this very suit. As evident, the Argument of the learned Counsel is not sustainable. The declaratory decree itself provided that Basauta was to remain in possession as occupancy tenant during the life-time of Shrmati Mathru. As such during her life-time, no suit could be brought with reference to Section 7 of the said Act. It would, therefore, be neither here nor there to slate on the basis of Section 7 of the said Ac! that a separate suit for possession should have been brought or a separate relief should have been incorporaled for possession to be delh ered to he Plaintiff.

It has been argued by the learned Counsel that enlargement of estate by the widow u/s 14 of the Hindu Succession Act, 1956, would also have an impact in this case. it is abundantly clear that Section 14 of the Hindu Succession Act, 1956, very much applied and Shrimati Mathru who was in possession of (he property as heir to her husband Jiunu and was limited owner of the property, became its full owner. That being the position, the declaratory decree immediately lost its significance. After the death of Shrimati Mathru her own heirs were to gel the property and not the heirs of the last male-holder Jiunu. The declaratory decree conferred benefits upon the reversioners and the succession was to open on the death of Shrimati Mathru in favour of an heir to Jiunu. That position was changed in 1956 because Shrimati Mathru became full owner and after her death, the heir of Jiunu could not succeed over the property, ''T'' therefore, the declaratory decree really lost its value and the reversioner Ram Dhan could ''not derive any benefit under it.

In these circumstances, the Plaintiff-appellant could only rely upon the doctrine of merger. The two Courts below have refused to apply this doctrine on the ground that provisions of Section 111(d) or (g) of the Transfer of Property Act do not apply to the property in dispute. At the same time they have conceded that the principles embodied in these provisions are applicable on grounds of equity, justice and good conscience. It would then be a subject-matter of enquiry as to whether the doctrine of merger can be invoked on grounds of equity, justice and good conscience.

The law relating to the doctrine of merger is very well settled. There is a string of authorities commencing from Dulhin Lacchanbati Kumari v. Bodh Nath Tiwari AIR 1922 PC 94 . In that case, Lord Shaw pointed out that the question regarding merger is to be settled with reference to intention to a coalescence of right meant to be accomplished as to extinguish inferior right by merger with the superior one. In Badri Narain Jha and Others Vs. Rameshwar Dayal Singh and Others, it was specifically pointed out by their Lordships of the Supreme Court that if a lessor purchases the lessee''s interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant. The present case is of a reverse situation because the lessee has purchased the interest of the lessor and it is difficult to concieve that Basanta remained an occupancy tenant as well as a proprietor both at the same time after the sale of 1964. The doctrine of merger has further been explained in Jyotish Thakur and Others Vs. Tarakant Jha and Others, It was held that the union of the superior and subordinate interests will not automatically cause a merger. Merger will be held to have taken place if the intention to merge is clear and not otherwise. In the absence of any express indication of intention, the courts will proceed on the basis that the party had no intention to merge if it was to his interest not to merge and also if a duty lay on him to keep the interest separate. In deciding the intention of the party the court will have regard also to his conduct. Their Lordships were dealing with the special features attached to the land tenure in Santhal Parganas and found that it was in the interest of the parties not to merge and that a duty also lay on them to keep the interests separate and therefore merger was not inferred in that case. The mandate of the Court is however clear, and in our opinion, a case of merger can only be proved if the intention to merge is proved. By the fusion of superior and subordinate interests automatic merger will not take place. If the interest of the party is well kept by keeping the two interests separate or a duty is cast upon him to keep such interests separate, no inference of merger can be drawn. We have to judge the facts and circumstances of the present case keeping regard to these principles. It cannot be stated that Basanta wanted to keep the two interests separate or that it was conducive to his interest to keep them separate. In the written statement, he has pleaded that he would have acquired the proprietary rights u/s 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954, but instead of doing that, he has chosen to acquire it by taking the sale in his name. Therefore, his intention was to become a full proprietor and no longer to continue as tenant of the land. There was thus an intention to fuse the two interests, rather than to keep them separate. At any rate, no duty lay upon him to keep the two interests separate. In the sale-deed also, there is a recital that although possession was with the purchaser as occupancy tenant yet proprietary possession was given and full ownership was conferred upon him. There is no recital to indicate that despite the transfer in his favour, the purchaser would continue to be the occupancy tenant. From the conduct of the parties also it cannot be inferred that Basanta treated himself to be the tenant of Shrimati Mathru. It has not been contended that he has been paying any rent to Shrimati Mathru after the execution of the sale-deed.

In Reoti Saran Vs. Hargu Lal, , a Division Bench of that Court was considering sale of proprietary rights to tenant and held that the lease was determined by the application of Section 111(d) of the Transfer of Property Act. It was observed that tenant''s possession after reconveyance of the property in the absence of fresh agreement of tenancy could only be considered to be possession of a full owner and the tenancy is determined. A similar situation has arisen, in our opinion, in the present case. In Raja Mohammad Amir Ahmad Khan Vs. Municipal Board of Sitapur and Another, the Supreme Court held that the principles embodied in Section 111(g) of the transfer of Property Act are equally applicable to tenancies to which that Act does not apply because they are in consonance with justice, equity and good conscience. Before a Bench of Delhi High Court sitting at Simla of which the report is Malagar v. Shiv Ram 1969 PLR 276, a question arose about the conferment of proprietary rights u/s 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954. One of the tenants was found to be co-owner and as such he held interest in every inch of the undivided property. It was observed that both the titles of the lessor and the lessee could not exist in one and the same person. In these circumstances, the proprietary rights were not conferred under that section. One of us while sitting singly in Parkash Chand v. Jai Ram 1971 HLR 426, had the occasion to consider Section 111(d) of the Transfer of Property Act. The observation made was as below:

In India, the principle is that whenever a certain relationship exists between two parties in respect of a subject-matter and a new relationship arises as regards the identical subject-matter, if the two sets of relationships cannot co-exist as being inconsistent and incompatible, that is to say, if the latter can come into effect only on termination of the earlier, that would be deemed to have been terminated in order to enable the latter to operate.

It is abundantly clear that in order to be tenant, Basanta has to hold the land from somebody. Obviously he cannot hold from himself and as such he cannot be a tenant in the land, being already its proprietor.

We are, therefore, of the opinion that the principles embodied in Section 111(d) and (g) would be applicable on grounds of equity, justice and good conscience. Although there could not be automatic merger by execution of the sale-deed, yet the intention to merge was clear. Basanta wanted to acquire proprietary title for which he had even thought to make an application u/s 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954. Instead, he obtained the sale-deed in his favour. His subsequent conduct never indicated that he wanted to retain the occupancy rights. It was with the avowed object of acquiring full ownership that he obtained the sale-deed. The conclusion would, therefore, be inevitable that merger took place of the inferior title with the superior one. The tenancy contract came to an end and unless a fresh contract of tenancy could be stated to have been brought into existence, Basanta would no longer be tenant of the land. The Respondents have not pleaded that any fresh contract of tenancy was brought into existence.

The necessary conclusion is, that on the date the pre-emption suit was filed Basanta being the vendee was the full proprietor and not the occupancy tenant. There is no dispute that the Plaintiff Ram Dhan had preferential right to pre-empt. The declaratory decree lost its significance. At the time of granting the relief, in our opinion, actual possession could not be deferred and should have been granted to the Plaintiff-appellant.

In the result, we allow the appeal and the decisions of the two Courts below are set aside to the extent they have held, that the appellant shall not be granted actual possession after ejectment of Basanta alias Basant Ram.

The appellant shall also be entitled to his costs from Respondent No. 1.