Appeal No 24 of 1955
Appeal by special leave from the judgment and decree dated March 11 1949 of the Bombay High Court in Letters Patent Appeal No 22 of 1945 arising out of the judgment and decree dated August 3 1944 of the said High Court in Second Appeal No 754 of 1942
695 M section K Sastri for the appellants
Naunit Lal for respondents
September 11
The Judgment of the Court was delivered by DAS C J
This appeal by special leave has arisen out of Original Suit No 582 of 1937 filed in the Court of the Subordinate Judge of Chikodi by one Tukaram Shidappa Borgavi alias Teli since deceased and his son Mallappa Tukaram Borgavi alis Teli 1st respondent herein against the appellants for the redemption of certain mortgaged property and possession thereof free from encumbrances and for other ancillary reliefs
The mortgaged property consists of R section No 301 which is Devasthan Inam Lands burdened with the obligation to supply oil for Nand Deep ie keeping a lamp always burning before Shri Tholaba Deity in the village of Nipani
The said property originally belonged to two brothers Shiddappa and Annappa
The khata of the land however stood in the name of Shiddappa as the registered occupant under section 74 of the Bombay Land Revenue Code 1879 Bombay Act V of 1879
The facts material for our present purpose may now be stated
On January 23 1888 Shiddappa and Annappa executed a usufructuary mortgage ExD 51 in favour of Lalchand Bhavanchand Gujar and Tuljaram Bhavanchand Gujar for Rs 1300 made up of Rs 1100 due under a previous mortgage and Rs 200 presently advanced in cash
That deed provided that the mortgage money would be repaid within a period of three years and that the mortgagors would pay the judi and incur the expenses of the Nand Deep and that on failure of the mortgagors to meet the said out goings the mortgagees would incur the said expenses and add the same to their claim on the mortgage
On March 10 1900 Shiddappa alone executed a simple mortgage exhibit D 52 for Rs 600 in favour of the same mortgagees
A part of the consideration for this simple mortgage consisted of moneys borrowed by both the brothers on bonds executed by both of them
This simple mortgage deed provided 696 that the mortgagees would bear the expenses of the Nand Deep and debit the same to the mortgagors in the mortgage account
On March 22 1900 before the simple mortgage deed was presented for registration Shidappa who was the registered occupant gave a Rajinama under section 74 of the Bombay Revenue Code recording his desire to submit an unconditional surrender of the above mentioned khata of R section No 307 from the end of the then current year
On the same day the mortgagees by a Kabuliyat prayed that the occupancy in the mortgaged property may be granted to them
Both the Rajinama and the Kabuliyat were sanctioned by the Mamlatdar on May 51900
Shiddappa having died Annappa in 1905 applied to the Mamlatdar alleging that the mortgaged property was Devasthan Inam and praying for the cancellation of the transfer in favour of the mortgagees and for placing the mortgaged property in his name
This application was rejected
In 1907 Shiddappa s son Tukaram the original first plaintiff hereinand Annappa the brother of Shiddappa filed suits against the mortgagees for accounts to be taken under the Deccan Agriculturists  Relief Act
That suit having been dismissed they appealed to the District Court Belgaum but that appeal was dismissed on March 15 1909
Annappa again applied for the lands being put in his possession but that application also was rejected on August 4 1910
Thereafter in 1911 Annappa and Tukaram the brother and son respectively of Shiddappa filed C section No 362 of 1911 under the same Deccan Agriculturists  Relief Act for the same reliefs
That suit was also dismissed and the appeal there from met with a like fate on March 171914
In 1922 Annappa died without any issue
The mortgagee Lalchand died issueless and the mortgagee Tuljaram died leaving a son named Lilachand Tuljaram who became entitled to the entire mortgage securities
On November 1 1937 Tukaram and his son Ganpat alleging that they were the legal representatives of both Shiddappa and Annappa filed Original Suit No 586 of 1937 out of which this appeal arises against the appellants Lilachand and his three sons for the redemption of the mortgages
In the 697 written statement the defendants appellants pleaded that the deceased Shiddappa having sold the mortgaged property to the mortgagees the equity of redemption became extinguished and that as Shiddappa alone was the registered occupant the Rajinama given by him was valid and binding on Annappa
They further alleged that the plaintiffs were not the heirs of the deceased Annappa for the latter had died after having transferred his interests in the mortgaged properties to others
It transpires that Annappa died in 1922 after having made and published his last will and testament bequeathing his interest in the mortgaged properties to one Krishna Kallappa that Krishna Kallappa applied for Letters of Administration in respect of Annappa s estate and that in spite of the opposition of Tukaram Letters of Administration with a copy of the will annexed was granted to Krishna Kallappa
Krishna Kallappa having died his four sons were added as party defendants to this suit and then on their own application they were transposed to the category of plaintiffs
The trial Court held that the Rajinama executed by Shiddappa did not extinguish the title of the mortgagors in the mortgaged property that the plaintiffs were agriculturists that they were bound to pay the amount also under the simple mortgage and that on taking accounts the mortgages had redeemed themselves
Accordingly the trial court passed a decree for possession declaring that both the mortgages had been satisfied
The mortgagees defendants 1 to 4 appealed to the District Court Belgaum in Regular Civil Appeal No 322 of 1940
The District Court held that by the Rajinama Shiddappa intended to convey the title in the suit land to the mortgagees and hence Shiddappa s heirs the plaintiffs 1 and 2 could not claim redemption of Shiddappa s one half share in the suit land
As regards Annappa s share the learned Judge held that the Rajinama had not the effect of transferring the interest of Annappa to the mortgagees and that inasmuch as the mortgages were subsisting the defendants could not acquire title by adverse possession
In this view he allowed the appeal in part with the result that 698 the suit was dismissed so far as the claims of plaintiffs 1 and 2 were concerned but the claims of plaintiffs 3 to 6 as the legal representatives of Annappa were upheld and they were allowed to redeem Annappa s one half share of and in the mortgaged property on payment of one half of the amounts due under the two mortgages
The mortgagee defendants 1 to 4 appealed to the High Court in Second Appeal No 754 of 1942 against that part of the decree which rejected their claim to Annappa s share and the plaintiffs 1 and 2 also filed Second Appeal No 1011 of 1942 against the dismissal of their claim for redemption of one half share of Shiddappa in the mortgaged property
Both the appeals were disposed of by a common judgment by Weston J
The learned Judge held that so far as Shiddappa s share was concerned the Rajinama was a complete relinquishment of his interest but as regards Annappa s share he agreed with the District Judge s conclusion that Shiddappa could not bind Annappa s share by the Rajinama and in this view of the matter he dismissed both the appeals
Against this decree both the parties preferred Letters Patent Appeals namely LPA No 22 of 1945 which was filed by defendants 1 to 4 and LPA No 16 of 1945 which was filed by plaintiffs 1 and 2
The Division Bench dismissed both the appeals
The present plaintiff No 1 the son of Tukaram the deceased son of Shiddappa who was the original plaintiff No 1 has not come up to this Court and therefore the decision of the Division Bench has become final so far as he is concerned
The High Court having refused to grant leave to appeal to this Court the mortgagees defendants 1 to 4 applied to and obtained from this Court special leave to appeal against the decision of the Division Bench in so far as it upheld the rejection of their claims to Annappa s half share in the mortgaged property
Hence the present appeal
The plaintiffs respondents who are the legal representatives of Annappa and against whom the present appeal is directed have not entered appearance in this appeal
Learned advocate appearing in support of the appeal urges that the Rajinama and the Kabuliyat taken 699 together evidenced a transfer of title from the mortgagors to the mortgagees and therefore operated to extinguish the equity of redemption not only of Shiddappa but also of Annappa for there is sufficient evidence on record that Shiddappa was the manager and karta of the joint family and that in the matter of passing the Rajinama he had acted in that capacity and therefore the Rajinama was binding on his brother Annappa
As pointed out by the Division Bench in their judgment in the Letters Patent Appeal this case of Shiddappa having acted as karta was nowhere made by the defendants appellants in their written statement and in agreement with the High Court we declined to allow learned advocate for the appellants to make out such a new case
This case being thus out of the way learned advocate for the appellants urges that under section 74 of the Bombay Land Revenue Code as Shiddappa was the registered occupant the Rajinama filed by him operated upon the entire occupancy and amounted to a relinquishment of the rights of both the brothers Shiddappa and Annappa
Section 74 of the Bombay Land Revenue Act as it stood at all material times ran as follows   An occupant may by giving written notice to the Mamlatdar or Mahalkari relinquish his occupancy either absolutely or in favour of a specified person provided that such relinquishment applied to the entire occupancy or to whole survey numbers or recognized shares of Survey Numbers
An absolute relinquishment shall be deemed to to have effect from the close of the current year and notice thereof must be given before the 31st March in such year or before such other date as may be from time to time prescribed in this behalf for each district by the Governor in Council
A relinquishment in favour of a specified person may be made at any time
When there are more occupants than one the notice of relinquishment must be given by the registered occupant and the person if any in whose favour an occupancy is relinquished or if such 700 occupancy is relinquished in favour of more persons than one the principal of such persons must enter into a written agreement to become the registered occupant and his name shall thereupon be substituted in the records for that of the previous registered occupant
 Reliance is placed on the concluding paragraph of the section which provides that when a relinquishment is made in favour of more persons than one the principal one of such persons must enter into a written agreement to become the registered occupant and his name shall thereupon be substituted in the records for that of the previous registered occupant
This provision it is said makes it clear that so far as the revenue authorities are concerned it is the registered occupant who represents the entire occupancy and the fact that the notice of relinquishment must under the section be given by the registered occupant also supports the contention that the Rajinama passed by the registered occupant binds all the occupants
We are unable to accept this argument as correct
The concluding paragraph of the section clearly recognises that a relinquishment may be in favour of more persons than one
It is true that the principal one of such persons must enter into a written agreement to become the registered occupant
This is for facilitating the purpose of the Code but it does not mean that the other persons in whose favour the occupancy is relinquished cease to have any right
That their right as occupants remains is clearly recognised by the opening paragraph of the section which gives an occupant a right to relinquish his occupancy either absolutely or in favour of a specified person
This right is given to all occupants if there are more than one for the singular includes the plural
It is true that where there are more occupants than one the notice of relinquishment on behalf of any occupant must be given by the registered occupant
That does not mean in the absence of any specific pleading and cogent proof that a notice of relinquishment given by the registered occupant must necessarily be a notice on behalf of all occupants or any particular occupant other than the 701 registered occupant or that the registered occupant has the right to give such a notice without reference to the other occupants so as to effect their interest in the occupancy
Turning to the Rajinama it is clear that Shiddappa did not purport to file the same on behalf of Annappa nor had he any right to do so by reason only of his being the registered occupant
In Lalchand Sakharam Marwadi vs Khendu Kedu Ughade 1 one out of four brother mortgagors who was the registered occupant of the mortgage land passed a Rajinama of the land in favour of the mortgagee who executed a Kabuliyat for the same
The remaining three mortgagors sued to redeem the mortgage alleging that the Rajinama passed by their brother conveyed only his interest and nothing more
It was held that though the conveying brother was a co mortgagor with the plaintiffs he had no right to sell their interest in the equity of redemption and that so far  as they were concerned he was in the same position as an outsider
It is true that no specific reference was made in the judgment to section 74 of the Bombay Land Revenue Code but the actual decision in that case the facts of which are very similar to those of the instant case quite clearly indicates the court s understanding of the law applicable to those facts and that law was nothing but the provisions of section 74 of the Code
In our opinion on a correct interpretation of section 74 where there are more occupants than one in respect of the same occupancy each occupant has his own rights and the fact of registration of one of them as the registered occupant attracts the operation of the Code and confers certain rights or imposes certain obligations on the registered occupant as laid down in the Code but does not take away the rights of other occupants
It is true that if any of the occupants other than the registered occupant desires to relinquish his occupancy
he cannot himself give a notice of relinquishment but must give it by and through the registered occupant Nevertheless the registered occupant in the absence of any authority express or implied to be clearly pleaded and strictly proved has no inherent or independent 1  89 702 right to give any such notice so as to affect the interests of the other occupants
In our opinion the Rajinama passed by Shiddappa did not affect the right of Annappa and his equity of redemption subsisted at all material times
In our judgment the conclusion of the Division Bench of the High Court in the Letters Patent Appeals was correct and the principal contention urged before us must be repelled
Learned Advocate for the appellant then faintly urges that Annappa s interest in the property was extinguished by reason of the adverse possession exercised by the mortgagees Since at least 1905 when the claim of the Annappa to get the mortgaged property registered in his name failed
It should be remembered that the mortgagees came into possession of the property pursuant to the usufructuary mortgage
Therefore their possession had a lawful origin
A mere assertion of an adverse title on the part of the appellants cannot affect the subsisting equity of redemption of the mortgagors or operate to shorten the period of limitation prescribed for a suit for redemption
In view of the observation of the Judicial Committee in Khiarajmal vs Daim 1 the learned advocate for the appellants did not seriously press the point of limitation any further
No other point having been urged before us in this appeal the appeal must for reasons stated above be dismissed
As the respondents did not appear there will be no order as to costs
Appeal dismissed
1 1904 L R 32 Ind App


Summary:
Under the Jammu and Kashmir Constitution Act all powers legislative executive and judicial vested in the Ruler
On the accession of the State to India on October 22 1947 the powers in respect of defence external affairs and communications were ceded to India
Under section 5 Of the Constitution Act the Ruler promulgated the Enemy Agents Ordinance section 2005 which provided for the trial and punishment of enemy agents and other persons siding the enemy
The Ordinance provided for trial of offences by Special judges and prescribed a procedure materially different from that followed in the criminal Courts
Section 5 of the Constitution Act was repealed on November 17 1951
The appellants were prosecuted under the Ordinance for offences alleged to have been committed on June 27 and 28 1957
They contended 1 that the Ordinance violated article 14 of the Constitution of India ii that the Ruler had no legislative competence to issue the Ordinance as it dealt with defence iii that S 5 of the 681 J K Constitution Act having been repealed the Ordinance came to an end iv that the Ordinance had lapsed as the emergency on account of which it was issued had ceased and v that the Ordinance was void as it was inconsistent with the Emergency Provisions in Part XVIII of the Constitution of India
Held that the Ordinance was intra vires valid and subsisting
The Ordinance was riot discriminative and did not violate article 14 Of the Constitution
In view of the circumstances existing in the State  enemy agents  and other persons aiding the I enemy  to whom the Ordinance applied formed a reasonable classification which was founded on an intelligible differentia which distinguished such persons from others and the differentia had a rational relation to the object of the Ordinance which was to check subversion of the Government
Besides if the Ordinance did not make any classification of persons but only created an offence and provided stringent procedure and punishment then there was no discrimination at all as everybody who committed the offence was subjected to the same procedure
Ram Krishna Dalmia vs Shri justice section R Tendolkar  followed
The Ordinance was not legislation with respect to defence and was within the legislative competence of the Ruler
The entry  defence  dealt only with the armed forces whether on land or sea or in the air and the raising or maintenance of such forces and their operations
The Ordinance dealt in the main with certain acts done with the intent to aid the enemy though indirectly it was concerned with the operations of the armed forces
In pith and substance the Ordinance was a law relating to public order criminal law and procedure and not defence
Though section 5 Of the Constitution Act was repealed the Ordinance was saved by section 6b of the Jammu and Kashmir General Clauses Act
Section 6b saved inter alia  anything duly don  under a repealed enactment and the Ordinance was a thing duly done  under section 5 of the Constitution Act
The Ordinance was a permanent piece of legislation
It came into existence because of an emergency but that was only the occasion for passing it
Being a permanent law it could only be brought to an end by means of repeal by competent authority
The Emergency Provisions in Ch
XVIII of the Constitution of India had nothing to do with the validity or otherwise of the Ordinance and the question of any inconsistency between the Ordinance and these provisions did not arise