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

1. The facts material for purposes of this appeal have been stated by us in our order dated 6-2-1957, and may be briefly recapitulated. The suit property is agricultural land of the extent of 10 Bighas, 13 Biswas. On 8-7-1930, the then owners of the land, Ram Prashad and Uadiraj, executed a usufructuary mortgage over it and certain other properties, with which we are not concerned in this litigation, in favour of Dwarka Prashad, Naubat Singh and Munshilal. The lands were originally held in Sir by the mortgagors, but as part of their bargain with the mortgagees, they applied to have their names removed from the Sir, and that was done by an order dated 18-6-1930, the lands being thereafter entered as Khudkasht in the names of the mortgagees. In 1941, Ram Prashad, the surviving mortgagor, filed Suit No. 132 of 1941 for redemption of the mortgage. The suit was contested, but it was eventually decreed, the amount due to the mortgagees being fixed at Rs. 1,860. Subsequent to the decree, Ram Prashad died leaving him surviving, the appellants herein, as his legal representatives. On 6-9-1945, the amount due under the mortgage was paid by them and the mortgage was redeemed. When they sought to take possession of the suit properties, they were obstructed by Govind Sahai and Bhagwan Sahai, who claimed to have been admitted as tenants by the mortgagees. Thereafter, the appellants filed the suit, out of which the present appeal arises, under S. 180 of the U. P. Tenancy Act No. XVII of 1939, hereinafter referred to as the Act, to eject them, treating them as trespassers. The defendants resisted the suit on various grounds, of which only one is now material. They claimed that they were not trespassers but hereditary tenants under the Act and could not therefore be ejected, and Issue 2 was raised with reference to this plea.2. The Revenue Officer, Meerut, who tried the suit held on this Issue that as the lands had been held by the mortgagors as Sir, and that as the mortgagees had been themselves cultivating them as Khudkasht, the defendants could not be held to be hereditary tenants, and passed accordingly a decree in ejectment in favour of the appellants, and this decree was confirmed on appeal by the Commissioner, Meerut Division. The defendants took the matter in appeal to the Board of Revenue (Second Appeal No. 96 of 1948). By its judgment and decree dated 4-2-1954, the Board held that the defendants had been put in possession by the mortgagees under a Kabuliat dated 26-5-1936, that the rent fixed under the Kabuliat, Rs. 112 per annum, was a reasonable rate of rent as the circle rate was Rs. 76-6-0, and that, therefore, the settlement was binding on the mortgagors, as it was for "prudent and economic rent". On this finding, it allowed the appeal and dismissed the suit. Against this judgment, the plaintiffs have preferred this appeal by special leave.

Reasoning:
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.