Case: Asa Ram And Another Vs. Mst. Ram Kali And Another

shall be entitled to all the rights of hereditary tenants under the Act. Some classes of tenants are excepted from the operation of this provision, and one of them is tenants of Sir lands S. 30 (6) enacts that,"Notwithstanding anything in section 29, hereditary rights shall not accrue in -land transferred by a mortgage to which the provisions of the second paragraph of sub-section (5) of S. 15 of the Agra Tenancy Act, 1926 apply during the period specified in that paragraph."The provision in the Agra Tenancy Act, 1926, referred to above, runs as follows:"Notwithstanding anything in this section, where the property transferred by means of a mortgage of the kind specified in sub-section (5) of S. 14 consists wholly of a specified area or sir, the mortgagor may by simultaneous agreement in writing waive his exproprietary rights, and in that case the mortgaged land shall, if the mortgagor regains within twelve years of the date of the transfer possession thereof on redemption of the mortgage, resume the character of Sir. In such land, statutory rights shall not accrue for twelve years from the date of transfer."One other provision to which reference was made is the second proviso to S. 11 of the U. P. Tenancy Act, 1939, which is as follows:"Provided further that if on redemption of a mortgage the mortgagor regains possession of land which under the provisions of the Agra Tenancy Act, 1926, ceased to be Sir and to which the provisions of the second paragraph of sub-section (5) of section 15 of that Act applied, such land shall again become his Sir."12. Now, the argument of the respondents is that though the suit lands were originally held in Sir, they ceased to be such when the mortgage was executed on July 8, 1930, that S. 29 (a) of the Act therefore applied, that S. 30 (6) and S. 11 of the Act and S. 15 of the Agra Tenancy Act, 1926, had no application, as the mortgage comprised also lands which were not Sir, and as further, possession had not been regained within twelve years of the mortgage. It is accordingly contended that the respondents who were in possession as tenants on January 1, 1940, when the Act came into force, had acquired the status of hereditary tenants under S. 29 (a) of the Act, and the decision in Jai Singh v. Munshi Singh, 1955 All LJ 834 (B) is relied on, in support of this contention.13. The error in this argument lies in the assumption that Govind Sahai and Bhagwan Sahai became by virtue of the Kabuliat dated May 26, 1936, tenants for purposes of S. 29 (a) of the Act.The true scope of sub-s. (a) of S. 29 is that it posits that there is on the date of the commencement of the Act a person who is lawfully a tenant and proceeds to confer on him certain rights. It is therefore a condition precedent to the application of this provision that the person must have been admitted as tenant by a person who had the right to do so. Where, however, the person who purports to grant the lease has no authority to do so, whatever the rights inter se between the lessor and the lessee, as against the true owner the latter does not, in law, acquired the status of a tenant, and S. 29 (a) has no application to him.Thus, if A is the owner of certain lands and B trespasses on them and grants a lease to C, sub-s. (a) of S. 29 does not operate to confer any rights on C as against A. The crucial question for determination, therefore, is whether the person who claims rights as a hereditary tenant under S. 29 (a) was admitted as tenant by a person who had the right to do so.An owner will of course be entitled to admit a tenant, and a mortgagee in possession would have a right to do so, either if he is authorised in that behalf by the deed of mortgage, or if the transaction is one, which is protected by S. 76 (a) of the Transfer of Property Act. But where the transaction is not one which could be upheld under S. 76 (a), then there is no admission of tenant by any person having authority to do so, and such a transaction though valid as between the mortgagee and the lessee, cannot form the foundation on which any rights under S. 29, sub-s. (a) of the Act could be based.14. In Mahabir Gope v. Harbans Narain Singh (A) (supra), it was held that when a usufructuary mortgagee created a lease in spite of the prohibition against letting, contained in the mortgage deed, the tenant acquired no occupancy rights under the provisions of the Bihar Tenancy Act, even though he had been in possession for over 30 years, and that the same consequences would follow if the lease was not binding on the mortgagor under S. 76 (a) of the Transfer of Property Act, or if it was not bona fide. On the same principle, and on our finding that the Kabuliat dated May 26, 1936, is not binding on the appellants, we must hold that Govind Sahai and Bhagwan Sahai acquired no rights as hereditary tenants under S. 29 (a) of the U. P. Tenancy Act. In Jai Singh v. Munshi Singh (B) (supra), relied on for the respondents, it was held that "the agricultural lease granted by the mortgagee in favour of Jai Singh was a lease granted in the ordinary course of management", and that, accordingly, the tenant acquired the rights of a hereditary tenant. That decision has no application when the lease is, as held by us, not a prudent transaction binding on the mortgagors. In this view, the questions raised by Mr. Sinha on the construction of S. 30 (6) and S. 11 of the Act and S. 15 of the Agra Tenancy Act, 1926, do no arise for decision.

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

Explanation:
1[ds]But the mortgagees have given evidence that they accepted the Kabuliat and received rent as provided therein. There is, therefore, no substance in this objection, which must beowner will of course be entitled to admit a tenant, and a mortgagee in possession would have a right to do so, either if he is authorised in that behalf by the deed of mortgage, or if the transaction is one, which is protected by S. 76 (a) of the Transfer of Property Act. But where the transaction is not one which could be upheld under S. 76 (a), then there is no admission of tenant by any person having authority to do so, and such a transaction though valid as between the mortgagee and the lessee, cannot form the foundation on which any rights under S. 29, sub-s. (a) of the Act could be based.14. In Mahabir Gope v. Harbans Narain Singh (A) (supra), it was held that when a usufructuary mortgagee created a lease in spite of the prohibition against letting, contained in the mortgage deed, the tenant acquired no occupancy rights under the provisions of the Bihar Tenancy Act, even though he had been in possession for over 30 years, and that the same consequences would follow if the lease was not binding on the mortgagor under S. 76 (a) of the Transfer of Property Act, or if it was not bona fide. On the same principle, and on our finding that the Kabuliat dated May 26, 1936, is not binding on the appellants, we must hold that Govind Sahai and Bhagwan Sahai acquired no rights as hereditary tenants under S. 29 (a) of the U. P. Tenancy Act. In Jai Singh v. Munshi Singh (B) (supra), relied on for the respondents, it was held that "the agricultural lease granted by the mortgagee in favour of Jai Singh was a lease granted in the ordinary course of management", and that, accordingly, the tenant acquired the rights of a hereditary tenant. That decision has no application when the lease is, as held by us, not a prudent transaction binding on the mortgagors. In this view, the questions raised by Mr. Sinha on the construction of S. 30 (6) and S. 11 of the Act and S. 15 of the Agra Tenancy Act, 1926, do no arise for decision.