Case: Patel Bhuder Mavji Etc Vs. Jat Mamdaji Kalaji (Deceased) Through L. Rs. Etc

only the liability for the full assessment of the lands was indicated without any disturbance to the rights inter se between the mortgagors and the mortgagees. Dealing with the question of the advances made and the amounts still due to the creditors, it was ordered that the debtors should pay Rs. 1,698/- in twelve yearly instalments and the award was directed to be modified accordingly.9. The matter was then taken up by way of Civil Revision to the High Court of Gujarat. The High Court arrived at the following conclusions:-(a) The decision of the Bhayati Court merely declared that the State was entitled to recover taxes of various kinds from the lands in possession of tenants or mortgagees. There was no decision that the lands in possession of the mortgagees were confiscated to the State.(b) The Special Mamlatdar rejected the application of the debtor and directed the lands in possession of the different creditors to be treated as Government lands as according to him the decision of the Bhayati Court amounted to a forfeiture of the lands by the Bajana State.(c) It was not necessary to test the correctness of the decision of the Special Mamlatdar as in view of the provisions in the Debtors Relief Act which was an Act subsequent to the Land Reforms Act the provisions of the latter Act were to prevail.10. In the result the High Court affirmed the order of the Assistant Judge in appeal directing possession to be handed over to the debtors.11. Before us great stress was laid on the decision of the Special Mamlatdar and it was argued that subject to any appeal from his order his decision was binding on the parties and not having gone up in appeal from the order of the Special Mamlatdar the debtors could not be allowed to agitate their rights to the land ignoring the said order. We have not before us the full text of the order of the Special Mamlatdar relied on by the appellants nor are we satisfied from copies of form 7 prescribed under Rule 81 of the Rules promulgated under the Land Reforms Act that there was any adjudication of the rights of the debtors and the creditors inter se.In our view all that the Special Mamlatdar decided and had jurisdiction to decide under the Act was, whether the debtors could be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being khalsa full assessment had to be taken in respect of them and there was no need to grant occupancy rights.In order to get such occupancy rights the creditors had to show that they had become tenants which obviously they could not be under the provisions of Section 6 of the Land Reforms Act.The fact that they had all along paid the revenue and other dues to the State, if any, would not clothe them with the right of the tenants.Under Sec. 76 (c) of the Transfer of Property Act a mortgagee in possession must, in the absence of a contract to the contrary, out of the income of the property, pay the Government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession. We do not know whether there was a contract in the contrary and whether the mortgagors had covenanted to pay the rent and the revenue.But even if they could not meet the revenue and other State dues out of the income and paid the same out of their own pockets in order to save the security, the mortgages were only entitled under Section 72 (b) of the Transfer of Property Act to add the amount to the mortgage money. They could not by paying such rent or revenue acquire a title in derogation of the rights of the mortgagors and the payments, if any, are to be taken into account when the mortgagors seek to redeem the property.12. That apart, it has not been shown to us that the debtors were awarded any compensation in respect of the khalsa lands given in mortgage to the appellants.The occupancy certificates, if any, given by the Special Mamlatdar to the appellants cannot under the provisions of the Land Reforms Act extinguish the title of the mortgagors.Whether the mortgagors as C class Girasdars can be allowed to retain land in excess of the limits specified in the Act and whether as a result of the restoration of the lands to them by the award such limit will be exceeded in this case, are not questions for us to consider. The right of the mortgagors not being extinguished under any provision of law to which our attention was drawn, no fault can be found with the award as finally modified by the judgment of the Assistant Judge and effect must be given thereto. In our view, it is not necessary to consider the point canvassed at length before the High Court and dealt with in the judgment of the said Court as to whether the provisions of the Debtors Relief Act override those in the Land Reforms Act. The objects of the two Acts are different. The object of the Land Reforms Act, as already noted is the improvement of the land revenue administration and putting an end to the Girasdari system an granting of occupancy rights to the Girasadars and/or their tenants, whereas the Debtors Relief Act governs the rights of the debtors and creditors inter se inter alia by scaling down the debts and providing for restoration of their property to debtors.In our view, the rights of the debtors in this case were not extinguished under Land Reforms Act and it was open to Court exercising jurisdiction under Debtors Relief Act to scale down the debt and provide for restoration of the land possession of the mortgagees to the mortgagors on taking fresh accounts the parties and directing payments by party to the other as as been done this case.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We have not before us the full text of the order of the Special Mamlatdar relied on by the appellants nor are we satisfied from copies of form 7 prescribed under Rule 81 of the Rules promulgated under the Land Reforms Act that there was any adjudication of the rights of the debtors and the creditors inter se.In our view all that the Special Mamlatdar decided and had jurisdiction to decide under the Act was, whether the debtors could be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being khalsa full assessment had to be taken in respect of them and there was no need to grant occupancy rights.In order to get such occupancy rights the creditors had to show that they had become tenants which obviously they could not be under the provisions of Section 6 of the Land Reforms Act.The fact that they had all along paid the revenue and other dues to the State, if any, would not clothe them with the right of the tenants.Under Sec. 76 (c) of the Transfer of Property Act a mortgagee in possession must, in the absence of a contract to the contrary, out of the income of the property, pay the Government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession. We do not know whether there was a contract in the contrary and whether the mortgagors had covenanted to pay the rent and the revenue.But even if they could not meet the revenue and other State dues out of the income and paid the same out of their own pockets in order to save the security, the mortgages were only entitled under Section 72 (b) of the Transfer of Property Act to add the amount to the mortgage money. They could not by paying such rent or revenue acquire a title in derogation of the rights of the mortgagors and the payments, if any, are to be taken into account when the mortgagors seek to redeem the property.12. That apart, it has not been shown to us that the debtors were awarded any compensation in respect of the khalsa lands given in mortgage to the appellants.The occupancy certificates, if any, given by the Special Mamlatdar to the appellants cannot under the provisions of the Land Reforms Act extinguish the title of the mortgagors.Whether the mortgagors as C class Girasdars can be allowed to retain land in excess of the limits specified in the Act and whether as a result of the restoration of the lands to them by the award such limit will be exceeded in this case, are not questions for us to consider. The right of the mortgagors not being extinguished under any provision of law to which our attention was drawn, no fault can be found with the award as finally modified by the judgment of the Assistant Judge and effect must be given thereto. In our view, it is not necessary to consider the point canvassed at length before the High Court and dealt with in the judgment of the said Court as to whether the provisions of the Debtors Relief Act override those in the Land Reforms Act. The objects of the two Acts are different. The object of the Land Reforms Act, as already noted is the improvement of the land revenue administration and putting an end to the Girasdari system an granting of occupancy rights to the Girasadars and/or their tenants, whereas the Debtors Relief Act governs the rights of the debtors and creditors inter se inter alia by scaling down the debts and providing for restoration of their property to debtors.In our view, the rights of the debtors in this case were not extinguished under Land Reforms Act and it was open to Court exercising jurisdiction under Debtors Relief Act to scale down the debt and provide for restoration of the land possession of the mortgagees to the mortgagors on taking fresh accounts the parties and directing payments by party to the other as as been done this case.