Case: Pratap Chand Vs. Ram Narayan And Another

find that it certifies that the respondents had purchased -/5/4 share in the village with abadi, khudkashat, chhotaghas and all rights pertaining to the share. It is true that khudkashat and chhotaghas are specifically mentioned in the sale certificate but the words " all rights pertaining to the share " appearing in the sale certificate would include such proprietary rights in the sir land as belonged to the share mentioned in the sale certificate. We are, therefore, of opinion. that so far as sir land is concerned, the proprietary right in it pertaining to -/5/4 share was mortgaged and the respondents by their sale certificate got a right in the sir land also.10. Now what happened after the mortgage deed in favour of the respondents was that the appellant purchased the entire -/10/8 share of Ramchandar subject to the mortgage of the respondents in 1932. At that time Ramchandar became an ex- proprietary tenant of his entire sir relating to this share under s. 49 of the Tenancy Act. In 1936 Ramchandar was ejected from the ex-proprietary tenancy which came in the possession of the appellant as lambardar and has apparently since then remained in his possession. The case of the respondents is that in 1936 their mortgage was subsisting and the sir land which thus came into the possession of the appellant on the extinction of the ex-proprietary tenancy became an accession to the mortgage and, therefore, they as mortgagees were entitled to half share in the lands which thus came into the possession of the appellant. We have already pointed out that the mortgage covered the sir plots also so for as the proprietary rights in them were concerned. Therefore, when Ramchandars ex-proprietary rights came to an end and the land came into the possession of the appellant and became khudkashat, the mortgage would cover this khudkashat land to the extent of the mortgagees share therein. It is, true that if Ramchandars ex- proprietary tenancy had continued, the mortgagee would have no right to ask for half share in it; but when the ex- proprietary tenancy was extinguished and this land came in the possession of the lambardar mortgagor it, was an accession to the mortgage under s. 70 of the Transfer, of Property Act and the mortgagees could claim a share in it., It was however urged that accession to be available to the mortgage must be a legal accession. We however see no illegality in the accession which took place. There is also no doubt that the accession took place when the mortgage was still subsisting. Therefore, we agree with the High Court that on the ex-proprietary tenancy being extinguished, the sir land which Would otherwise-have remained in the exclusive possession of Ramchandar as an ex-proprietary tenant became an accession to the mortgaged property and the respondents would be entitled to half of it on their purchasing the /5/4 share in execution of the decree on the mortgage. The fact that the rent of an ex-proprietary tenant is due to the person whose ex-proprietary tenant he becomes by virtue of the sale or mortgage with possession would make no difference after ex-proprietary tenancy is extinguished, for on such extinction the land would go to the entire proprietary body and would thus in this case be an accession to the mortgage to the extent of the share mortgaged.11. This brings us to the lands in the name of Ramchandars mother. It appears that these lands came into the possession of Ramchandar after the mortgage but before the institution of the mortgage suit. They were nominally recorded in the name of his mother and in 1932 after his entire share was purchased by the appellant lie was recorded as an occupancy tenant of these lands. Later the appellant came into possession of them apparently as a lambardar. It is not clear when and how the appellant got possession of them. There can be no doubt however that his possession was for the entire body of proprietors and the respondents would be entitled to a share in them. But it was urged that the claim of the respondents to these lands was barred by 0. 11, r. 2 of the Code of Civil Procedure, because they were not specified in the plaint based on the mortgage deed of 1920. Reliance in this connection is placed on Hazarilal v. Hazarimal (A. I. R. 1923 Nag. 130) and Seth Manakchand v. Chaube Manoharlal (A.I.R. 1944 P.C 46, ). These cases in our opinion do not apply, because they are cases of foreclosure while in the present case the respondents suit was for sale of the share mortgaged with them. Further in the plaint, when specifying the khudkashat plots it wag made clear that they were khudkashat on the date of the mortgage; the respondents thus did not specify the khudkashat plots on the date of the plaint. Though they had specified some plots in the plaint which were mentioned in the sale certificate also, the suit "-as for the sale of the entire /5/4 share and that would include khudkashat lands pertaining to the share existing at the time when the suit was filed. It is not necessary in a suit for sale to specify the lands in the possession of the mortgagor specifically and they would pass on sale along with the share sold. The claim, therefore, would not be barred under 0. 11, r. 2, on the ground that these plots entered in the name of the mother of Ramchandar were not specifically mentioned in the plaint.12. This leaves certain lands which came into the possession of the appellant as a lambardar in the ordinary course of management. The respondents would clearly be entitled to a share in these lands also on payment of proportionate expenses incurred by the appellant in the course of suits in which he came into possession. This is what the High Court has ordered and we see no reason to disagree with that view.13.

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

Explanation:
0[ds]Sections 49 and 50 in our opinion only come into play when the proprietor making a transfer loses his right to occupy any portion of his sir land temporarily or permanently and sanction has to be obtained under s. 50 only where the transfer is to be made without reservation of the right of occupancy. But the mortgage in this case is a simple mortgage and there was no transfer of possession under it. Therefore the proprietor Ramchandar never lost his right to occupy his sir land by this mortgage and there was therefore no necessity for him to make any reservation in that respect or to apply for sanction under s. 50, for he was not losing the right to occupy his sir at all. But that does not mean that when he mortgaged his entire share of -/5/4 out of -/10/8 share, , he was excluding from the mortgage the area of sir corresponding to the share mortgaged. As the mortgage deed of 1920 stands, it is a mortgage of all the proprietary rights in -/5/4 share including the proprietary right in the sir pertaining to that share ; but as the proprietor was not losing his right to occupy the sir land, the mortgage being without possession, it was not necessary for him to make any application under s. 50 of the Tenancy Act. We are therefore of opinion that the appellant cannot take advantage in the circumstances of the fact that no application was made under s. 50 of the Tenancy Act and therefore there was no effect of this mortgage on the sir rights. As we read the mortagage it clearly affected the sir Tight also pertaining to -/5/4 share and it was not necessary to make an application under s. 50 of the Tenancy Act, for the mortgagor was not losing possession of his sir and there would be no question of any ex-proprietary tenancy arising in his favour, to relinquish which he would have to apply under s.now to the plaint in the mortgage suit we find that the property subject to the mortgage is mentioned in para. 2 thereof inexactly the same terms as in the mortgage deed. In para. 13 it is again recited that the mortgagor mortgaged -/5/4 share out of his -/10/8 share. Paragraph 13 then goes on to say that on the date of the mortgage, the mortgagor had certain khudkashat and chhotaghas lands and both cultivating and proprietary rights in them pertaining to half share only were liable to be sold. No mention was made of sir in this paragraph. But that in our opinion was not necessary, for the mortgage included the mortgage of sir land also pertaining to -/5/4 share though without possession. The prayer in the suit was for sale of the mortgaged property together with khudkashat, etc.; but this again was a mere matter of precaution, for in any case the entire proprietary right in sir, khudkashat, etc., relating to -/5/4 share would be sold on a decree following on thecoming to the sale certificate we find that it certifies that the respondents had purchased -/5/4 share in the village with abadi, khudkashat, chhotaghas and all rights pertaining to the share. It is true that khudkashat and chhotaghas are specifically mentioned in the sale certificate but the words " all rights pertaining to the share " appearing in the sale certificate would include such proprietary rights in the sir land as belonged to the share mentioned in the sale certificate. We are, therefore, of opinion. that so far as sir land is concerned, the proprietary right in it pertaining to -/5/4 share was mortgaged and the respondents by their sale certificate got a right in the sir landwhat happened after the mortgage deed in favour of the respondents was that the appellant purchased the entire -/10/8 share of Ramchandar subject to the mortgage of the respondents in 1932. At that time Ramchandar became an ex- proprietary tenant of his entire sir relating to this share under s. 49 of the Tenancy Act. In 1936 Ramchandar was ejected from the ex-proprietary tenancy which came in the possession of the appellant as lambardar and has apparently since then remained in his possession. The case of the respondents is that in 1936 their mortgage was subsisting and the sir land which thus came into the possession of the appellant on the extinction of the ex-proprietary tenancy became an accession to the mortgage and, therefore, they as mortgagees were entitled to half share in the lands which thus came into the possession of the appellant. We have already pointed out that the mortgage covered the sir plots also so for as the proprietary rights in them were concerned. Therefore, when Ramchandars ex-proprietary rights came to an end and the land came into the possession of the appellant and became khudkashat, the mortgage would cover this khudkashat land to the extent of the mortgagees share therein. It is, true that if Ramchandars ex- proprietary tenancy had continued, the mortgagee would have no right to ask for half share in it; but when the ex- proprietary tenancy was extinguished and this land came in the possession of the lambardar mortgagor it, was an accession to the mortgage under s. 70 of the Transfer, of Property Act and the mortgagees could claim a share in it., It was however urged that accession to be available to the mortgage must be a legal accession. We however see no illegality in the accession which took place. There is also no doubt that the accession took place when the mortgage was still subsisting. Therefore, we agree with the High Court that on the ex-proprietary tenancy being extinguished, the sir land which Would otherwise-have remained in the exclusive possession of Ramchandar as an ex-proprietary tenant became an accession to the mortgaged property and the respondents would be entitled to half of it on their purchasing the /5/4 share in execution of the decree on the mortgage. The fact that the rent of an ex-proprietary tenant is due to the person whose ex-proprietary tenant he becomes by virtue of the sale or mortgage with possession would make no difference after ex-proprietary tenancy is extinguished, for on such extinction the land would go to the entire proprietary body and would thus in this case be an accession to the mortgage to the extent of the sharebrings us to the lands in the name of Ramchandars mother. It appears that these lands came into the possession of Ramchandar after the mortgage but before the institution of the mortgage suit. They were nominally recorded in the name of his mother and in 1932 after his entire share was purchased by the appellant lie was recorded as an occupancy tenant of these lands. Later the appellant came into possession of them apparently as a lambardar. It is not clear when and how the appellant got possession of them. There can be no doubt however that his possession was for the entire body of proprietors and the respondents would be entitled to a share incases in our opinion do not apply, because they are cases of foreclosure while in the present case the respondents suit was for sale of the share mortgaged with them. Further in the plaint, when specifying the khudkashat plots it wag made clear that they were khudkashat on the date of the mortgage; the respondents thus did not specify the khudkashat plots on the date of the plaint. Though they had specified some plots in the plaint which were mentioned in the sale certificate also, the suit "-as for the sale of the entire /5/4 share and that would include khudkashat lands pertaining to the share existing at the time when the suit was filed. It is not necessary in a suit for sale to specify the lands in the possession of the mortgagor specifically and they would pass on sale along with the share sold. The claim, therefore, would not be barred under 0. 11, r. 2, on the ground that these plots entered in the name of the mother of Ramchandar were not specifically mentioned in theleaves certain lands which came into the possession of the appellant as a lambardar in the ordinary course of management. The respondents would clearly be entitled to a share in these lands also on payment of proportionate expenses incurred by the appellant in the course of suits in which he came into possession. This is what the High Court has ordered and we see no reason to disagree with that view.