Vasu Krishna Yekavda vs Madhavrao Moreshwar Bhadanekar

Lallubhai Shah, Acting C.J.

The point arising in this appeal is very simple. The facts are that the defendant effected a simple mortgage of his one-third share in the Khata. The mortgage is said to have been paid off on November 5, 1917, and the Khot filed the present suit in 1918, to claim the right which accrued to him u/s 10 of the Khoti Settlement Act, as amended by the Acts of 1912 and 1913. In virtue of the provisions of Section 9, as amended, the interest of the occupancy tenant is heritable but not transferable without the consent of the Khot. The exception laid down in that section does not apply to the facts of the present case, and u/s 10 "if the occupant does any act purporting to transfer his land or any portion thereof or any interest therein without the consent of the Khot, his land shall be at the disposal of the Khot as Khoti land free of all incumbrances, other than the liens or charges created or existing in favour of Government." That is the provision which the plaintiff seeks to enforce in his favour, and both the lower Courts have awarded his claim.

In the present appeal before us by the occupant, the original defendant No. 2, it has been urged that that simple mortgage is not a transfer of the interest of the occupant in the land within the meaning of Section 10. But it is difficult to hold that a simple mortgage is not a transfer of the interest of the mortgagor within the meaning of that section. There is no decision on the point, and on the plain meaning of the word ''transfer'' it is difficult to exclude such a transfer as we have in the present case from the scope of that section.

It is also urged that as the defendant No. 2 paid off the mortgage before the suit was filed, it must be treated as not having been made at all, and that at the date of the suit there was no cause of action. The words of the section are clear that if the occupant does any act purporting to transfer any portion or any interest in the land without the consent of the Khot, his land shall be at the disposal of the Khot. It is the defendant''s act by way of effecting a simple mortgage that gives the Khot a right which he claims to enforce in the present suit, and the satisfaction of the mortgage before suit cannot afford any answer to the claim made by the plaintiff. It is apparently a hard case; but we have to give effect to the provisions of the section as enacted by the Legislature, and defendant No. 2 has not been able to show that the present transfer is outside the scope of the section. We, therefore, dismiss the appeal with costs.