Tirkha, etc. vs Dwarka Parshad, etc.

D.K. Mahajan, J.—This second appeal is directed against the concurrent decisions of the Courts below decreeing the Plaintiff''s suit.

Plaintiff Dwarka Parshad got the land in dispute on mortgage from Smt. Kasturi, daughter of Jawatri, wife of Kishan Jiwan. The ownership of the land vested in Tirkha and others. Kishan Jiwan held this land as a dholidar. He mortgaged the same to the present Appellants, i.e., Tirkha and others, on 13th May, 1929 for Rs. 160. On his death, his widow Javitri succeeded him. On her death, which took place 5 or 6 years before the suit, she was sueceeded by Kasturi, Defendant No. 5, as dholidar. Kasturi effected a further mortgage on the said land in favour of Dwarka Parshad, Plaintiff, for Rs. 1,000 by registered deed, dated 24th February, 1964. On the basis of this mortgage Dwarka Parshad brought a suit for possession of the land against the previous mortgagees Tirkha and others by redemption of the prior mortgage. This suit was contested by the Defendants on the ground that the dholidar had no right to transfer the land which formed the subject-matter of dholi tenure, by mortgage and the same was invalid. The land, therefore, reverted to the original owners and the dholi tenure became extinct. The Defendants also denied that Kasturi was the daughter of Kishan Jiwan.

The trial Court found that Kasturi was the daughter of Kishan Jiwan and that the mortgage was void, but this defence was not available to the Defendant-Appellants for the simple reason that they themselves were holding the land as mortgagees from Kishan Jiwan. Therefore, they could not go behind this mortgage to dispute the right of the subsequent mortgagee to redeem the land. In this view of the matter, the suit was decreed. An appeal by the Defendants failed. The Defendants have come up in second appeal to this Court.

The contention of Mr. Surinder Sarup, learned Counsel for the Defendant-Appellants, is that the transaction of mortgage is void and, therefore non est. The Defendant-Appellants are the original owners of the land and, therefore, the Defendants could impeach the validity of the mortgage and it is immaterial whether they themselves are the mortgagees. The question whether the dholi tenure exists or not is a question between the dholidar or his successors and the proprietors of the village, but so far as the mortgagee is concerned, he gets no rights under the mortgage. This contention appears to be sound in view of the clear pronouncement of Sir Shadi Lal in Sewa Ram v. Udegir ILR 2 Lah. 312. The learned Chief Justice, after setting out the nature of the tenure, observed:

It is beyond dispute that tenure of this kind cannot be alienated by sale or mortgage, and there can be little doubt that any alienation of that character, if made by the dholidar, would be absolutely void. This being the case, we are not prepared to accept the contention that the present dholidar, who is the son of the alienor, is precluded by any rule of law from impeaching the alienation made by his father. As the transaction was altogether void, we consider that even the alienor would have successfully pleaded in answer to the Plaintiff''s suit that the latter could not enforce it in a Court of law. There is, therefore, no reason, why the Defendant should not be able to impeach the alienation, more especially, when we remember that the office of a dholidar is similar to that of a trustee, and that it is open to one trustee to impeach the validity of an alienation made by his predecessor.

There is a world of difference between a void and a voidable transaction. A void transaction is non est whereas a voidable transaction is good so long as it stands, but becomes void when it is impeached by the person who has a right to get the transaction ?declared void. The observations of the learned Chief Justice are clear on the point that the alienation of dholi tenure is void ab initio. If it is void, it is non est. On the other hand if it is voidable the alienor could not challenge it. Whereas according to the learned Chief Justice a dholidar can impeach the very alienation he has made. Thus the alienation is void and not voidable. Therefore, it must be held that the Defendants could defeat the redemption suit on the short ground that there was no mortgage in favour of the Plaintiff.

Mr. Jain, learned Counsel for the Respondents, contends that it is the dholidar''s successors, who alone can impeach the alienation, but this contention cannot be accepted in view of the clear pronouncement of the learned Chief Justice, to which a reference has already been made. In this view of the matter, it appears to me that the Courts below were in error after holding that the mortgage in favour of the Plaintiffs'' was void that it could be redeemed. This conclusion runs counter to the decision in Sewa Ram''s Case.

For the reasons recorded above, I allow this appeal, set aside the judgments and decrees of the Courts below and dismiss the Plaintiffs'' suit. In the circumstances of the case, there will be no order as to costs.