Sheo Barat Singh vs Padarath Mahton and Others

Atkinson, J.—This appeal comes before me from the decision of the District Judge of Gaya, dated the 14th June 1917.

The plaintiffs seek a declaration that they are entitled to the lands in suit as their khudkasht lands; and they claim that the defendants Nos. 1 to 5 had no right or title to settle the same with defendants Nos. 6 and 7; and they also allege that defendants Nos. 6 and 7 have not acquired occupancy rights in respect of the property in suit, and that in fact they are trespassers thereon.

The plaintiffs on partition became entitled to a 7 dams odd share in Mouza, Dihuri Hasanpur situated in the District of Gaya. The interest which the plaintiffs acquired on partition in the aforesaid Mouza was the proprietary or Zemindari right therein, and the share of the plaintiffs is represented by two bights 18 kathas and 17 dhurs of land.

The plaintiffs in the year 1893 mortgaged the Zemindari interest in the lands in suit to defendants Nos. 1--5 to secure a sum of Rs. 450. The mortgage was in form a usufructuary mortgage; and the mortgage-deed provided that the mortgagees were to be in possession of the mortgaged premises for a period of seven years; that they were to discharge the outgoings and to pay whatever balance was left over out of the yearly rent reserved by the deed itself to the mortgagors. What was in fact mortgaged was the proprietary interest of the plaintiffs in Mouza Dihuri Hasanpur which, as I have said, comprised of two bighas 18 kathas and 17 dhurs of land. The usufructuary mortgage-deed clearly reserved power to the mortgagors to redeem the mortgaged premises by paying up the amount of the mortgage-debt even after the term of the mortgage itself had expired. The mortgage would have expired in the year 1900, but in fact the mortgagor did not exercise the right of redemption until the 18th June 1913. Consequently from the year 1893 down to June 1913 the mortgagees have been in possession of the Zemindari interest in the lands in suit as usufructuary mortgagees.

The mortgage was redeemed not by a redemption suit but by mutual agreement between the parties. During the currency of the mortgage the mortgagees let the two odd bighas of land above referred to, the Zemindari right in which was the security for the amount of the mortgage money advanced, to the defendants Nos. 6 and 7. The precise date when the letting was made to the defendants Nos. 6 and 7 has not been ascertained; but it would appear from the judgments of the two lower Courts that the defendants Nos. 6 and 7 have been in possession of the lands in suit for a very considerable time,

These are the short facts of the case and it is necessary to consider the legal points involved in the light of the legal arguments which have been addressed to me.

As I have already pointed out the plaintiff claimed that the lands in suit were his khudhasht lands. Both the lower Courts concur in a finding of fact that the lands in suit were not the khudkasht or bakasht lands of the plaintiff. Consequently when the mortgage was executed in the year 1893, the inference must be that the lands in suit were then raiyati lands, and that the mortgagees merely secured the proprietary or Zemindari interest in the lands as security for their mortgage-debt.

I gather that subsequent to the creation of the mortgage the raiyati interest, which had been in existence in respect of the 2 bighas odd when the mortgage deed was executed, lapsed or expired, for some reason which does not definitely and precisely appear. It may be that the original raiyat of this small miserable holding of two bighas 18 kathas and 17 dhurs abandoned his interest therein, and that thereupon the lands became unoccupied as raiyati lands for the time being; and that the defendants Nos. 1--5 as mortgagees of the Zemindari interest inducted the defendants Nos. 6 and 7 upon these lands and since which time the defendants Nos. 6 and 7 have been in possession thereof. Now these defendants Nos. 6 and 7, by virtue of the letting made to them by the defendants Nos. 1 to 5, claim to have acquired, if not occupancy rights, at least non-occupancy right in the lands in suit.

The first contention put forward is that the ijara zarpeshgi mortgage deed did not create as between the mortgagors and the mortgagees the relationship of landlord and tenant; and that in effect it was nothing more than a simple usufructuary mortgage, and did not in law make the defendants Nos. 1 to 5 tenants of the plaintiff in the ordinary legal acceptation of the term.

The learned District Judge in appeal held that the usufructuary mortgage bond had in law the effect of creating the defendants Nos. 1 to 5 tenants of the lands in dispute to the plaintiffs.

In my opinion the learned District Judge was clearly wrong in point of law in arriving at this conclusion, having regard to the decision of this Court in a case reported as Raj Kumar Thakur Ranjit Narayan Singh v. Motilal Marwari 43 Ind. Cas. 808 : (1917) Pat. 24, and in addition there are numerous other authorities to show that a deed of the character of the deed in this case is not a lease but a mortgage; vide Nidha Sah v. Murli Dhar 25 A. 115 (P.C.) : 30 I.A. 51 : 5 Bom. L.R. 111 : 7 C.W.N. 289 : 8 P.C.J. 435

In argument before me the learned Vakil appearing on behalf of the respondents admits that the decision of the learned Appellate Court that the usufructuary mortgage-bond referred to in this suit did in law create a letting as between landlord and tenant in the ordinary acceptation of the term is wrong and cannot be supported.

The plaintiff-appellant contends that the defendants Nos. 1 to 5 were mortgagees only, and that they as mortgagees had not the power or right to create an interest affecting the mortgaged premises of longer duration than their own interest in the same. That being limited owners in effect they could not create a burden or interest affecting the Zamindari right which would enure as against the mortgagor after redemption.

This argument at first seemed well founded, but on a closer examination it appears to me to be without foundation. A mortgagee in possession of the property of the mortgagor has clearly defined rights and duties to discharge relative to the mortgaged property pledged as security for the mortgage-debt. These rights and obligations are embodied in Sections 72 to 76 of the Transfer of Property Act; and one of the obligations imposed upon a mortgagee in possession is that he shall manage the mortgaged property in a prudent way such as an ordinary man would manage his own business.

It appears to me reasonable and rational that if a mortgagee while in possession lets a portion of the mortgaged premises which has become vacant or untenanted during the currency of the mortgage security that then clearly it is the mortgagee''s duty either to occupy the land himself and cultivate it to the best advantage or in the alternative as a prudent business man to let such land to a solvent tenant. The law precludes the possibility of the mortgagee allowing the land to remain fallow, and if the mortgagee did allow the land to remain in a wasteful and unprofitable condition so as to be wholly unproductive the law would impose upon the mortgagee liability for gross mismanagement and default.

Therefore, the position in this case is this that the mortgagees of the Zemindari right and interest in exercise of their statutory duty and obligation created a tenancy or a letting of the lands which formed the subject-matter of their mortgage security to the defendants Nos. 6 and 7.

The question that remains to be considered is what right did the defendants Nos. 6 and 7 acquire in respect of the letting, which was clearly made to them by the action of the mortgagees in possession of the Zemindari interest in the mortgaged property.

The case reported as Atal Chandra Rishi v. Lakhi Narain Ghose 2 Ind. Cas. 417 : 10 C.L.T. 55 seems to me to indicate very clearly that the tenant to whom the letting was made by the mortgagees was at least a non-occupancy raiyat within the meaning of the Bengal Tenancy Act.

Mr. Justice Mookerji deals with this aspect of the case at page 56 of the report, and at page 57 he says: "The possession of the fourth defendant, therefore, in its inception was lawful and as he became a raiyat he acquired the rights of at least a nonoccupancy raiyat."

The well-known case which is a Full Bench ruling of the Calcutta High Court reported as Binad Lal v. Kalu Pramanik 20 C. 708 (F.B.) : 10 Ind. Dec. 477 seems to me in its reasoning to apply with considerable force to the facts of this case. In the case immediately referred to it was laid down that a trespasser, who believing himself to be the de facto landlord of certain premises inducted a tenant thereon and who made a letting of a certain portion of the premises in the alleged landlord''s possession and whom the tenant believed to be the de facto landlord, created qua the tenant a tenancy in the lands so let of a non occupancy character.

This Full Bench ruling referred to has been considered in subsequent cases, but it has never been dissented from though the principle underlying it has been made plainer and clearer by subsequent decisions, Reading the Full Bench ruling with the later authorities reported as Upendra Narain Bhattacharya v. Protab Chandra Pardhan 8 C.W.N. 320 : 31 C. 703, Krishna Nath Chakravarti v. Muhammad Wafiz 31 Ind. Cas. 789 : 21 C.W.N. 93 : 23 C.L.T. 563 the sum and substance of these authorities amount to this that where a man believes himself bona fide to be landlord of certain premises, though in law he is not so, and he makes a letting to a person who believes bona fide that such person is the landlord and has power to make such letting that then the interest created by virtue of such letting creates a non-occupancy raiyat interest in favour of the person to whom the letting is made.

The only answer urged in reply to this argument is the definition of a raiyat contained in Section 5, Sub-section 3 of the Bengal Tenancy Act.

Sub-section 3 provides that a person shall not be deemed to be a raiyat unless he holds lands either immediately under a proprietor or immediately under a tenure-holder, and the argument is that as a mortgagee is neither a proprietor nor a tenure-holder, that, therefore, the person to whom a mortgagee lets lands cannot be said to be raiyat.

Section 60 of the Bengal Tenancy Act is relied upon for the purpose of showing that that Act contemplates a distinction between a proprietor and a mortgagee.

I cannot agree with this argument. It seems to me to be against the entire current of all modern authority; and if it were open to me to hold I would hold, that a usufruotuary mortgagee of the proprietary interest in landed property is qua the occupying tenants on the estate in the position pro tern, of a proprietor; because the whole legal estate of the proprietor is for the time being during the currency of the mortgage vested in the mortgagee as such and all that the true owner of the estate has is a right in equity to redeem the property, when he himself conceives that he is able to discharge the obligation of paying the mortgage debt.

Therefore, I hold that in point of law the learned Judge was wrong in deciding that the defendants Nos. 1--5 were tenants of the plaintiffs. But I hold that they were mortgagees in possession under a usufructuary mortgage of the Zemindari right pledged as security for the mortgage-debt and that they bad power in law to induct a tenant into the tenanted land subject to such mortgage when the whole or part of such tenanted land became unlet or vacant and without a tenant, and that such tenant when inducted by the mortgagees acquired non-occupancy rights in the tenanted land subject to such mortgage as aforesaid.

The question remains to be considered whether the plaintiff''s suit is barred by limitation. If I am right in holding that the defendants Nos. 6 and 7 have acquired non-occupancy rights in the lands in suit, then I think it is reasonably clear, having regard to the Full Bench ruling of this Court reported as Janki Singh v. Mahant Jagannath Das 44 Ind. Cas. 94 : 3 P.L.J. 1, that the plaintiff''s rights are barred and that this suit is not maintainable, under Schedule III, Article 1, Clause (a). If the defendants Nos. 6 and 7 are non-occupancy raiyats, then the obligation in law is upon the plaintiff, if he desires to dispossess the defendants, to bring a suit in ejectment to eject the defendants Nos. 6 and 7 within six months after the expiration of the mortgage or after the mortgage had been redeemed. This the plaintiffs did not do inasmuch as they only brought this suit 2 /2 years after the mortgage itself was redeemed. The mortgage having been redeemed on the 18th June 1913, the present suit was instituted on the 11th November 1915.

Clearly, in my opinion, having regard to the Full Bench of this Court this suit was barred. The lower Appellate Court found that the plaintiff''s claim was not barred by limitation, but the Court failed to consider the question of limitation in the light of the Full Bench ruling of this Court.

Accordingly I hold that the plaintiff''s suit ought to have been dismissed and that this second appeal is unsustainable in point of law and must be dismissed with costs and the plaintiff''s suit in all Courts dismissed with costs.