Sukuru Mali vs Sri Brahmapura Balbhadra Mahaprabhu

Sir Thomas Fredrick Dawson Miller, Kt., C.J.—This is an appeal by the defendants from the decision of the Subordinate Judge of Sambalpur, dated the 11th January 1918, affirming, in part, a decree of the Munsif of the 11th June 1917. The facts, so far as they are material to the present appeal, are these. In the year 1897 the defendant No. 1 execrated a mortgage in favour of the plaintiff, No. 2. On the 11th June 1903 the plaintiff, having instituted a suit for that purpose, obtained a decree for foreclosure against the defendant No. 1 in the Court of the Extra Assistant Commissioner of Sambalpur, and on the 5th March 1904 that decree was made absolute. In July of the same year the plaintiff No. 2 obtained possession of the property, and on the following day was dispossessed by the defendants. About four years later, namely, on the 22nd December 1908, the plaintiff No. 2, by a deed of gift, being at that time still out of possession, made over his interest in the property in question to the plaintiff No. 1, who is an idol. The plaintiff No. 3 is the son of plaintiff No. 2 and the defendant No. 2 is the son of the defendant No. 1. The three plaintiffs on the 28th July 1906, having been out of possession of the property for nearly twelve years, instituted the present suit, claiming a declaration of title to the land in question and possession after ejectment of the defendants.

Various defences were raised by the defendants to the suit, but the only one with which we are concerned in this appeal is a defence which was raised as an amendment to the written abatement of the defendant No. 2. It is to this effect, that the property in suit is the ancestral immoveable property of the defendant; that at the date of the alleged mortgage of the 18th August 1897 and of the decree in the suit for foreclosure the defendant No. 2 was a minor, and that the debt contracted by the defendant No. 1 was not made for any legal necessity or moral purpose, and that the defendant No. 2 is, therefore, not bound by the mortgage or the decree, and he farther pleaded, which perhaps is the same thing in another form, that the defendant No. 1 had no right to mortgage the property even to the extent of his own share; or, if he had, that the defendant No. 2''s right to redeem the property still subsists.

It is not disputed, indeed it is alleged, in the plaint that, until three years ago, that is, three years from the date of the plaint which was filed in 1916, the defendants Nos. 1 and 2 were members of a joint family, and it is found that the property in question in the suit was the family property. The property which was mortgaged consisted partly of bhogra lands and partly of raiyati lands, and when the case came before the Munsif he, whilst finding that the property was ancestral property of the defendants Nos. 1 and 2, which, in fact, is not disputed, decided all the other issues, which were numerous but which it is unnecessary to go into for the purposes of this appeal, against the defendants. He came to the conclusion that the mortgage was granted for legal necessity, and that the defendant No. 2 could not in such a case question the foreclosure decree. In deciding the question of whether there was any evidence that the mortgage was not granted for necessary purposes, the learned Munsif appears to have put the onus upon the wrong party, and he decreed the suit in favour of the plaintiffs.

The defendants appealed from this decision to the Subordinate Judge, who arrived at a different conclusion of fast on the question of legal necessity, placing the onus on the right party. He found that no legal necessity had been proved which in law would justify the mortgage. In these circumstances he allowed the appeal of the defendants with respect to the bhogra lands. With regard to the raiyati lands he arrived at a special finding, which, in his opinion, excluded them from the operation of the ordinary incidents attaching to ancestral property. I cannot do better than read the Judge''s own words on this question. Ha disposes of it in this way:--

It is an admitted fact that the pro-parties were ancestral. It was, however, urged by the learned Pleader for the respondent that the mortgaged properties consisted of bhogra and raiyati lands; that in respect to the latter the son had no vested interest by birth owing to the peculiar nature of raiyati interests in this district, as has been laid down in a series at decisions of the Judicial Commissioner, Central Provinces. So far as I know, the decisions have not been doubted anywhere. I accordingly hold that the mortgage and foreclosure decree were valid in respect to the raiyati lands.

From that decision the defendants have preferred this second appeal. The plaintiffs are content with the Judgment of the Sub-ordinate Judge and have not appealed. The contention of the appellants is that once it is admitted that this is family property, then it cannot be disputed that the defendant No. 2 had, at the time the mortgage was entered into by his father, a vested interest in that property as a member of a joint family. At the time of that transaction in 1897 the defendant No. 2, if his age is correctly stated in the plaint, would be a boy of some eleven years, and his contention is one which appears to me to be absolutely unassailable that his father had no sort of power to alienate family property unless the alienation was made in consideration of a pre-existing debt or by reason of what is called legal necessity. It is not suggested in this case that there was any pre-existing debt, and it has been found by the lower Appellate Court that the mortgage was not granted for any necessity such as would justify a transaction of that sort. It seems, therefore, to follow that this mortgage transaction is not binding upon the son or indeed upon anybody, and that the son having come of age is clearly entitled to assert his rights which have not been extinguished, and to have the whole transaction set aside.

The respondents, however, contend, following the conclusion arrived at by the Subordinate Judge, that the ordinary rights and incidents attaching to joint family property in cases where a family is governed by the Mitakshara Law, as in this case, do not apply to raiyati holdings in those localities which are governed by the Central Provinces Tenancy Act. For that contention they rely upon the decision of Mr. Stanyon, at that time Second Additional Judicial Commissioner in the Central Provinces, in the case of Ghanya v. Ukund Rao 4 N.L.R. 9. The passage there relied on is to this effect:--

The Tenancy Act does not recognise such things as succession by right of survivorship, the vesting of a son''s interest by birth, and so on. Any tenant may surrender a holding whenever he pleases; if he leaves it uncultivated for two years in some cases he is deemed to have surrendered it. Such provisions obviously ignore anything resembling vested interest in the tenant''s sons or other heirs.

I wish to point out that in the particular case in which these observations were made it was not necessary for the learned Judicial Commissioner to decide the question which he is there dealing with. That was a case where there had been a separation between four brothers who were joint. Two of these brothers immediately after separation mortgaged some of the property which formed their share after partition. Subsequently the sons of another brother, who was not a party to that transaction, claimed to set aside that mortgage on the ground that at the time the mortgage was executed they, as members of a joint family, had a vested interest in the property. It was found, as a fact, that a partition had taken place and the sons of one of the brothers who were joint before partition had no right to impugn the validity of any transaction made by any of the other brothers in respect to their portion of the property after partition. I have looked through the Tenancy Act, and we have been referred to certain sections of it, and the only section which has been quoted to us as establishing the proposition contended for by the respondents is section 46, sub section (1), which is in these terms:--

When an occupancy tenant dies his right in his holding shall devolve as if it were land.

I confess I can see nothing in that section which in any way supports the contention put forward by the respondents in this case. It may be that under the special provisions of this Act occupancy raiyats have certain powers of alienation, and certain right may also be prescribed by the Act as between themselves and their landlords; but, except so far as ordinary incidents of an occupancy raiyat may be specially limited or extended by the Act, I can find nothing in the Act which in any way purports to interfere with the ordinary rules of law governing members of a Mitakshara family and relating to their rights in the ancestral property. It seems to me, therefore, that the learned Subordinate Judge''s decision on this point cannot stand. This appeal will be allowed with costs here and below; the judgment and decree of the lower Appellate Court will be set aside, and judgment will be entered for the defendants in the suit.

Reginald Roe, J.

I agree. I can see no justification for the suggestion that an occupancy right in the Central Province''s is a thing any more peculiar than an occupancy right in Bihar. The erroneous impression in the mind of the Subordinate Judge seems to be due to a misunderstanding of the well worn dictum that an occupancy right is a personal right. It is a personal right in this sense only that what has been done by one person towards the acquisition of an occupancy right cannot be continued and completed by another. It is also true to say that an occupancy right may be acquired by a contract between the landlord and the person; but in considering this point of view it is necessary to recognise that a person need not necessarily be an individual. It may be a firm or a body corporate or a joint family, and a landlord in contracting with an individual may be dealing with a whole family represented by that individual. An occupancy right may be, and frequently is, a part of the ancestral estate. It has been found as a fact in this case to have been a part of the ancestral estate, and, therefore, the younger sons of a Mitakshara joint family had interests in it which it was beyond the power of the father to destroy or encumber for anything but a family purpose. I agree that the suit should have been dismissed with costs.