Rupkali Bai vs Kedarnath

Bhutt, J.—This is an appeal of defendants Nos. 3 and 4 against the decree for possession.

Appellant No. I Rupkali is the wife of the second appellant Gopalsaran Lal. Respondents No. 2 and 3, Sampatlal and Madanmohanlal, were the first and second defendants and are real brothers. Sampatlal is the father of Rupkali. He and his brother Madanmohanlal were co-sharers of mauza Bareli of which the plaintiff Kedarnath, first respondent, was the Lambardar. They mortgaged their village-share with him, which was foreclosed on 15th January 1934. Thereafter they became exproprietary tenants of their sir land. They were, however, ejected from the holding on 12th October 1940 by Kedarnath in execution of his decree for arrears of rent. On 4th March 1945 Sampatlal gifted his house on the abadi site to his daughter Rupkali by an unregistered instrument, Ex. D-7. This house was the subject-matter of the suit.

The case of the plaintiff was that Sampatlal and, his brother Madanmohanlal had mortgaged the house along with their village-share and accordingly they lost their ownership of the site thereof when the mortgage property was foreclosed. Thereafter, they occupied the site as licensees when they became tenants of their sir land. The licence, however, expired after they lost their tenancy rights and accordingly they had no right thereafter to occupy or transfer the site. The suit was, therefore, instituted to eject the defendants from the site after removal of the structures. The claim was allowed by both the Courts below. Hence this appeal.

The only ground urged before me Was that the suit is liable to be dismissed as not maintainable on account of the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950) (No. 1 of 1951). Reliance is placed on Chhoti Khan vs. Mohammad Obedullah Khan, I. L. R. (1953) Nag. 702.

The claim as initially laid was solely based on the plaintiff''s status as proprietor and (sic) of the village. The plaint was subsequently amended by the addition of the averment that the site of the house was also mortgaged and foreclosed. This allegation was expressly denied by the appellants who were the real contesting defendants. There is, however, no evidence in support of the plaintiff''s allegation. Neither a copy of the mortgage deed or of the foreclosure decree has been filed, nor has even the plaintiff testified to the inclusion of the house-site in the mortgage. In para 12 of the deposition, the plaintiff has referred to another mortgage of 1939-40 by Sampatlal, but that is not the subject-matter of the suit, nor is it shown that any rights were acquired by him by virtue of that mortgage. Even Sampatlal, when he entered the witness-box, was not questioned on the point. It must, therefore, be held that the acquisition of the site by the plaintiff for consideration is not proved.

The question then is whether in the absence of an express exclusion, the site shall be deemed to have passed to the plaintiff under Sec. 8 of the Transfer of Property Act, along with the village-share. This question would depend upon whether the right of Sampatlal and Madanmohanlal over the site was an appurtenance of their village-share.

The suit is governed by the C. P. Land Revenue Act, 1917. Sec. 2 (8) thereof defines the term ''Mahal'' as any area, excluding a malik mukbuza plot or a survey number which is separately assessed to land revenue, whether such land revenue is payable or has been released, compounded for or redeemed, in whole or in part, or any other area which the State Government may, by general or special order, declare to be a mahal. An estate is a collection of mahals held by the same proprietor, which the State Government may, by notification, declare to be an estate [Section 2 (3)], Then there is further unit called ''village'', This term has been defined in Section 2 (20) as including any tract of land which, at the last settlement of such land, has been recognised as a village, or which the Commissioner may, from time to time, declare to be a village for the purposes of the Act. A village has thus a wider concept and is inclusive of land which may not be part of the mahal, It is, however, only a geographical expression of an area whose component units may not necessarily be correlated or inter-dependent.

In this setting, we have to understand the position of the area reserved as abadi. One who has a share in the village has necessarily an equal interest in the mahal comprising the village. But this does not mean that he has also an equivalent share in the other units which do not form part of the mahal but are noly physically located within the limits of the village. Thus he will not have an interest in malik (sic) akbza plots or survey numbers held by others, even though physically they form part of the village. So far as the abadi is concerned, it is an area which the Settlement Officer, in the case of every inhabited village, reserves for the residence of the inhabitants or for purposes ancillary thereto under Sec. 71 of the C. P. Land Revenue Act. It is, therefore, an area reserved for communal use and would be held by persons on the terms and conditions that may be embodied in the village administration paper under Sec. 79 read with Sec. 78 of the Act. So far as Sec. 188 of the Act is concerned, it only entitles the lambardar to exercise the powers of the proprietors in matters relating to the village abadi and does not determine the rights that the proprietors have over the sites. The area of the abadi doubtless vests ultimately in the proprietors of the village but it cannot be deemed to be an appurtenance of their village shares as it reserved for special purposes and is liable to be disposed of accordingly. Consequently it appears that, unless there is an express transfer of the abadi sites, they would not, under Sec. 8 of the Transfer of Property Act, go with the village share.

In Shiolal vs. (sic) 8 N. L. R. 123 , the question was whether the in right shall, in the absence of any words showing an intention to retain it, be included in the mortgage of a village share. This question was answered in the affirmative. This proposition applied to all these rights which the mortgagor had in the village share. So far as the houses were concerned, they were expressly included in the mortgage. What has been observed in respect of the sir right in the case does not, therefore, apply to the houses. From the facts in AIR 1927 177 (Nagpur) it does not appear that the houses were situated on the village abadi. The decision would therefore, be unexceptionable if they were, as found by the Courts, appurtenant to the village share but not if they stood on the village abadi. In Narain Ganesh (sic) vs. Baliram and another 14 N. L. R. 165 P. C., the question was as regards the accrual of tenancy rights in sir land on foreclosure of the village share and not as regards the point under consideration.

In Syed Ashgar Raza Khan vs. Syed Mahomed Mehdi Hussain Khan 30 I. A. 71, their Lordships of the Judicial Committee dealt with the shares of a Zamindari comprising the bazars built on lands which were not shown to have been severed there from. To such a case Sec. 8 of the Transfer of Properly Act would be clearly applicable. Their Lordships, however, did not determine the question under what circumstances the houses would be deemed to be appurtenant to the Zamindari or village shares. This case was relied upon so also Narayan Das vs. Jatindara Nath 54 I. A. 218 , in Deokinandan Prosad Vs. Aghorenath Banerji and Others, for the view that the house standing on the land comprised in the Zamindari passed to the transferee with the Zamindari. This also is a case of an appurtenant right under Sec. 8 of the Transfer of Property Act and does not help the present question.

The case of Ashgar Raza Khan 30 I. A. 71, was also referred to in Sheoraj vs. Ganga Prasad A. I. R. 1941 Oudh 395. In that case, the transfer was of an entire Zamindari patti, constituting a district unit like a village itself, which included an area comprising specific abadi numbers forming part and parcel of the Zamindari patti. This patti also included a house and Sahan. On these facts, it was held that the Abadi numbers together with the house and Sahan passed with the Zamindari patti. Reliance was placed on Abuhasan vs. Razan Ali I. L. R. 4 All. 381 and Abhainandan vs. Pashpat I. L. R. 47 All. 470 and also upon Balram Singh v. Gangasingh A. I. R. 1926 Oudh 358 and AIR 1927 240 (Oudh) which had followed the Allahabad decisions. These cases lay down the proposition that the rights and interests of the transferor in a village or Zamindari include his houses and buildings situate within the Zamindari or village. In all these cases, however, it appears that the Zamindari or the village together with the abadi numbers were exclusively owned by the transferors.

A case akin to the present came up for consideration before a full bench of the Allahabad High Court in Umrao Singh vs. Khacheru Singh I. L. R. 1939 All. 60. In that case the defendant, Umrao Singh had made a simple mortgage of his entire Zamindari share in favour of the plaintiff Khacheru Singh. The plaintiff, obtained a final decree on the mortgage, and put up the share to sale and purchased it himself. Subsequent to the date of the decree, the defendant executed a deed of gift of 3 houses in the abadi of the village to his daughter-in-law. The sale certificate stated that the entire Zamindari interest of the defendant including his interest in the abadi was sold. The houses and their sites, however, were not transferred under the mortgage or under the sale. The Courts below held that the houses or material thereof, as well as the sites, must be taken to have passed to the auction-purchaser. The question referred to the Full Bench was whether the property in the houses in suit passed to the plaintiff under the auction sale or not. This question was answered by a majority of Judges in the negative.

One of the questions involved in the above case was whether Sec. 8 of the Transfer of Property Act was applicable to an involuntary sale through Court in view of the limitations enacted under clause (d) of Sec. 2 ibid. These limitations also cover the case of a transfer of a decree of the Court, e.g. a transfer by a final decree of foreclosure as in the present case. The Full Bench, however decided the case independently of this question as well. Their Lordships referred to the provisions of the U. P. Land Revenue Act (III of 1901) which are analogous to those of the C. P. Act and observed that as the term Mahal means only an area, it cannot include house property. As regards the houses, apart from their sites, it was observed that they belong to the Zamindars and to the ryots, and do not form part of the mahal. Their Lordships then discussed the various decisions of the High Courts and of the Privy Council and after explaining them, accepted the ratio decidendi of Kanhaiya Lal vs. Shivlal I. L. R. 58 All. 376. In that case, it was held that in his residential house, a co-sharer has proprietary title in three things:-(1) a joint right in the site, (2) a proprietary right in the materials, and (3) a right of residence in the house, and that by an auction sale of the Zamindari share only the cc-sharer''s right in the site passes to the auction-purchaser and not his proprietary rights in (2) and (3). As regards the rules enacted by Sec. 8 of the Transfer of Property Act, it was held, relying on the observations of their Lordships of the Privy Council in Narayan Das Khettry vs. Jatindra Nath Roy Chowdhury I. L. R. 54 Cal. 669, that in India there is no absolute rule of law that whatever is affixed or built on the soil becomes part of it and is subject to the same rights of property as the soil itself. It was also observed that the test of determining that property can be said to be owned by a co-sharer as Zamindar, which will pass to the purchaser along with the Zamindar, is whether the other co-sharers have any right enjoyed in common by all the co-sharers. Such was not held to be the case with a residential house built by one of the cosharers. In this view it was held that the proprietary interest in the building is in no sense an appurtenance to the Zamindari share or interest in the mahal and even in the absence of any express exclusion would not pass to the transferee. This view has my respectful concurrence. As this is a case of a house, it is not necessary for purposes of the present appeal to pursue the question as to the right of a transferee over the open abadi sites owned by the proprietors who transfer their village shares. For the reasons already stated, however, it appears to me that since the village abadi is created and reserved by Statute for use by the village community as a whole, it cannot be deemed to be an appurtenance of the proprietary interest in the village.

In the above view, the case does not fall within Sec. 5 of the M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act and is accordingly hit by the decision in Chhote Khan''s case. The result is that the appeal is allowed, the decrees of the Courts below are set aside, and the suit is directed to be dismissed with costs. Costs of both the appeals shall be on the plaintiff.