Case: Meharbansingh Vs. Bhagwantsingh and Others

Bhind, he examined the statements of Himachal Singh DW 1, Ram Krishan DW 2 and Hanumant Singh DW 3. Himachal Singh was a cousin of mortgagee Munshi Singh, Ram Krishan DW 2 was a nephew of Munshi Singh and Hanumant Singh DW 3 was himself a defendant. On a consideration of their statements, the court of first appeal reached the conclusion that the mortgagors were themselves cultivating the land and thereafter the mortgagee got it cultivated through his relatives. But even if it were assumed that the mortgagee really inducted tenants in the lands during the period of the mortgage, their tenure was bound to end on the redemption of the mortgage according to the ordinary law of redemption unless, of course, they could lay claim to protection under any other law. Reference in this connection may be made to the decision of this Court in Mahabir Gope and others v. Harbans Narain Singh and others(1) where the law has been laid down as follows, -"The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgagee cannot, therefore, create an interest in the mortgaged property which will inure beyond the termination of his interest as mortgagee. Further, the mortgagee, who takes possession of the mortgaged property, must manage it as a person of ordinary prudence would manage it if it were his own; and he must not commit any act which is destructive or permanently injurious to the property; see section 76, sub-clauses (a) &(e) of the Transfer of Property Act. It follows that he may grant leases not extending beyond the period of the mortgage; any leases granted by him must come to an end at redemption."Care was taken to state further in that case that if during the permissible settlement by a mortgagee in possession with a tenant in the course of prudent management, any right sprang up in the tenant by conferral or creation by statute, that would be a "different matter altogether", for that would then be an "exception to the general rule." 13. The decision in Mahabir Gope s case (Supra) was applied or was followed in Harihar Prasad Singh and another v. Mst. of Munshi Nath Prasad and others(2) where it was held as follows, -"As the mortgagees are neither proprietors nor tenure holders as defined in the Act, the tenants holding under them could not claim to be raiyats as defined in sections 5(2) and 5(3), and no occupancy rights could therefore be acquired by them under section 21 of the Act." That decision was again followed in Asa Ram and another v. Mst. Ram Kali and another(1) also, and was held as follows, - "But where there is no such prohibition, the only consequence is that the parties will be thrown back on their rights under the Transfer of Property Act, and the lessees must still establish that the lease is blinding on the mortgagors under s.76(a) of that Act." 14. Reference may also be made to Prabhu v. Ramdev and others(2) where again reference was made to t he decision in Mahabir Gope (supra) and the legal position was reiterated as follows, -"Having made these observations, however, this Court has taken the precaution to point out that even in regard to tenants inducted in to the land by a mortgagee cases may arise where the said tenants may acquire rights of special character by virtue of statutory provisions which may, in the meanwhile, come into operation. A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period, it was observed, was a different matter altogether. Such a case is clearly an exception to the general rule prescribed by the Transfer of Property Act. It will thus be seen that while dealing with the normal position under the Transfer of Property Act, this Court specifically pointed out that the rights of the tenants inducted by the mortgagee may conceivably be improved by virtue of statutory provisions which may meanwhile come into operation . That is precisely what has happened in the present case. During the continuance of the mortgage s. 15 of the Act came into operation and that made the respondents Khatadars who are entitled to claim the benefit of s. 161 of the Act." 15. It is therefore well settled that the normal law of mortgage would apply and tenants inducted by the mortgagee would go out of the lands on redemption of the mortgage, if, in the meanwhile, law has not been shown to intervene for their protection. As, in the instant case, the law expressly gave the benefit of sub-section (2) of section 4 to a proprietor like the appellant, the tenants inducted by the mortgagee will have no statutory right of possession. A vain attempt was made to invoke section 41 of the Act for the protection of the tenancy rights of the mortgagees, but their learned Counsel was unable to show how they could claim the benefit of that section in face of the clear provision of sub-section (2) of section 4 of the Act. In fact all that Mr. Bhandare was able to contend on behalf of the respondents was that their case was covered by this Courts decision in Haji Sk. Subhans case (supra). That decision formed the basis of the earlier decision of the High Court dated September 27, 1962, but this Court clearly pointed out in its earlier decision that the High Court was "in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority o f this Courts decision in the case of Haji Sk. Subhan" (supra). It is therefore not necessary for us to say, once again, why that decision cannot govern the present dispute. 16.

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

Explanation:
1[ds]There can be no doubt, therefore, that the trial court recorded the finding, on the basis of the evidence before it, that the suit lands were recorded as the khud-kasht lands of the plaintiffs before the date of the vesting of the estate. That was in fact not disputed in the High CourtAll that the High Court had then to do was to decide whether the appellant was entitled to the benefit of sub-section (2) of section 4 of the Act, for that was the clear direction of this Court in the earlier judgment. It is not disputed before us that the plaintiffs were the proprietors of the suit lands, and it cannot be disputed that as they mortgaged them with possession with defendant Munshi Singh, they were themselves in possession upto the date of the mortgage, and as it has been found as a fact that the lands were recorded as khud-kasht lands of the mortgagors in the annual village papers before the date of vesting, they were clearly entitled to a decree for possession in terms of sub-section (2) of section 4 and there was no occasion for the High Court to examine the consequence of their losing the possession of the lands after the mortgage. It has to be appreciated that possession is always lost by the mortgagor in the case of a mort gage with possession. But when clause (f) of sub-section (1) of section 4 gave the mortgagor the benefit of sub-section (2) of that section to claim the right to remain in possession of his khud-kasht land which was in his possession upto the d ate of mortgage, if the strict requirement of sub-section (2) was shown to exist, there could be no reason why it should be denied to the plaintiffs.It may be mentioned in this connection that when the case came up in first appeal before the Second Additional District Judge of Bhind, he examined the statements of Himachal Singh DW 1, Ram Krishan DW 2 and Hanumant Singh DW 3. Himachal Singh was a cousin of mortgagee Munshi Singh, Ram Krishan DW 2 was a nephew of Munshi Singh and Hanumant Singh DW 3 was himself a defendant. On a consideration of their statements, the court of first appeal reached the conclusion that the mortgagors were themselves cultivating the land and thereafter the mortgagee got it cultivated through his relatives. But even if it were assumed that the mortgagee really inducted tenants in the lands during the period of the mortgage, their tenure was bound to end on the redemption of the mortgage according to the ordinary law of redemption unless, of course, they could lay claim to protection under any other lawIt is therefore well settled that the normal law of mortgage would apply and tenants inducted by the mortgagee would go out of the lands on redemption of the mortgage, if, in the meanwhile, law has not been shown to intervene for their protection. As, in the instant case, the law expressly gave the benefit of sub-section (2) of section 4 to a proprietor like the appellant, the tenants inducted by the mortgagee will have no statutory right of possession. A vain attempt was made to invoke section 41 of the Act for the protection of the tenancy rights of the mortgagees, but their learned Counsel was unable to show how they could claim the benefit of that section in face of the clear provision of sub-section(2) of section 4 of the Act.In fact all that Mr. Bhandare was able to contend on behalf of the respondents was that their case was covered by this Courts decision in Haji Sk. Subhans case (supra). That decision formed the basis of the earlier decision of the High Court dated September 27, 1962, but this Court clearly pointed out in its earlier decision that the High Court was "in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority o f this Courts decision in the case of Haji Sk. Subhan" (supra). It is therefore not necessary for us to say, once again, why that decision cannot govern the present dispute.