dedol-hf/india-case-legal-rag huggingface dataset:
support the inference that the properties were given to  her
absolutely  and  not for enjoyment merely, so  long  as  she
lived.
 But what is more important is, that the object of  creating
these two documents, as the surrounding circumstances  show,
was not merely to make provision
   777
for  the maintenance of Mst. Meria; the other and  the  more
important object was to perfect the title of Nand Lal to the
estate  left  by Mangal Sen and to quiet all  disputes  that
freight  arise in respect of the same. It may be  that  Mst.
Meria could not, in law, claim any. thing more than a  right
to  be  maintained  out  of  the  estate  of  her   deceased
father-in-law.  But  it  is clear that  whatever  her  legal
rights might have been, Nand Lal's own position as the  sole
owner of the properties left by Mangal Sen was not altogeth-
er  undisputed or free from any hostile attack. As has  been
said  already,  Sunder  Lal, the brother of  Meria,  was  in
occupation  of the double-storied shop from long before  the
Tamliknama was executed and Meria got any legal title to it.
It appears from the record that in 1920 a suit was institut-
ed on behalf of the infant Nand Lal for evicting Sunder  Lal
from  the  shop and the allegation in the  plaint  was  that
Sunder Lal was occupying the property as a tenant since  the
time of Mst. Mithani by taking a settlement from her. Sunder
Lal  in his written statement filed in that  suit  expressly
repudiated  the allegation of tenancy and also the title  of
Nand Lal and openly asserted that it was Mst. Meria who  was
the actual owner of Mangal Sen's estate. The suit ended in a
compromise arrived at through the medium of arbitrators  and
the  result was that although Sunder Lal admitted the  title
of the plaintiff, the latter had to abandon the claims which
were made in the plaint for rents, costs and damages. Sunder
Lal continued to be in occupation of the shop and executed a
rent agreement in respect of the same in favour of Nand  Lal
promising  to pay a rent of Rs. 12 per month. A  few  months
later, the Tamliknama was executed and this shop along  with
the  residential house were given to Meria in maliki  right.
The  recitals in both the Tamliknama and the deed of  relin-
quishment  clearly indicate that the supreme anxiety on  the
part  of Babu Ram, who was trying his best to safeguard  the
interests  of  the minor, was to put an end to  all  further
disputes that might be raised by or on behalf of Mst.  Meria
with regard to the rights of Nand Lal to the properties
778
of  Mangal Sen and to make his title to the same  absolutely
impeccable.  That seems to be the reason why Meria was given
a  comparatively  large portion of the  properties  left  by
Mangal  Sen which would enable   her to live in comfort  and
her  interest  was not limited  to a bare right  of  mainte-
nance. It is significant to  note that the shop room,  which
was all along in  possession of Sunder Lal, was included  in
this  Tamliknama and soon after the grant was  made,  Sunder
Lal   executed  a rent agreement in respect of the  shop  in
favour  of Mst. Meria acknowledging her to be the  owner  of
the property.
  It is true that the document does not make any   reference
to  the heirs of Meria, but that is not at  all   necessary,
nor  is it essential that any express power   of  alienation
should be given.  The word "Malik" is  too common an expres-
sion in this part of the country  and its meaning and impli-
cations were fairly well  settled by judicial pronouncements
long  before  the   document was executed.   If  really  the
grantee  was  intended to have only a life interest  in  the
properties,   there was no lack of appropriate  words,  per-
fectly  well  known in the locality, to express such  inten-
tion.
The  High  Court seems to have been  influenced  to   some
extent  by  the  fact that in the Tamliknama  there   was  a
guarantee given by Babu Ram to Meria herself  and to no  one
else agreeing to compensate her in case she was dispossessed
from   the  properties  at the instance of  Nand  Lal.  This
covenant  in  the document was in the nature of  a  personal
guarantee  given  by Babu Ram to Mst. Meria for  the  simple
reason that the property belonged to an infant and it was as
guardian  of the minor that Babu Ram was purporting to  act.
It  was too much to expect that Babu Ram would bind  himself
for  all  time to come and give a guarantee  to  the  future
heirs  of Meria as well. Probably no such thing was  contem-
plated by the parties and no  such undertaking was  insisted
upon  by  the other side. But whatever the reason  might  be
which led to the  covenant being expressed in this  particu-
lar  form, I do not think that it has even a remote  bearing
on the
      779
question  that arises for our consideration in  the  present
case. It is of no assistance to the plaintiff in support  of
the  construction that is sought to be put upon the ,  docu-
ment on his behalf.
    I  am  also not at all impressed by the other  fact  re-
ferred  to  in the judgment of the High Court  that  if  the
properties were given to Meria in absolute right, there  was
no necessity for including them again in the schedule to the
deed  of relinquishment which Meria executed. I fail to  see
how  the inclusion of the properties in the deed  of  relin-
quishment would go to indicate that Meria's rights to  these
properties were of a restricted and not an absolute  charac-
ter.  It is after all a pure matter of conveyancing and  the
two  documents have to be read together as parts of one  and
the  same' transaction. Under the ' Tamliknama ', Meria  got
two properties in absolute right out of the estate of Mangal
Sen. By the deed of relinquishment, she renounced her  claim
for  maintenance  in respect of all the properties  left  by
Mangal  Sen including the two items which she got under  the
'Tamliknama'.  After the ' Tamliknama' was executed  in  her
favour,  there Was no further question of her  claiming  any
right  of  maintenance  in respect of  these  two  items  of
property.  She became the absolute owner thereof in exchange
of her rights of maintenance over the entire estate and this
right of maintenance she gave up by the deed of  relinquish-
ment.  On a construction of the entire document, my  conclu-
sion  is that there is nothing in the context of  the  docu-
ment,  or in the surrounding circumstances which would  dis-
place  the presumption of full proprietory rights which  the
use  of the word "Malik" is apt ordinarily to  convey.   The
first  contention of the appellant, therefore, succeeds  and
in  view of my decision on this point, the  second  question
does not arise for determination at all.
    The  result is that the appeal is allowed, the  judgment
and decree of the High Court are set aside and those of  the
trial  Judge  restored. The defendant No. 6  will  have  his
costs from the plaintiff in all the courts. There will be no
order for costs as regards the other parties:
780
FAZL  ALI J.--I agree with the judgment delivered by  my
learned brother, Mukherjea J.
    CHANDRASEKHARA  AIYAR  J.--During  the  hearing  of  the
appeal  I entertained doubts whether the view taken  by  the
High Court was not correct. But on further consideration,  I
find  that  it cannot be maintained, having  regard  to  the
terms  of the ' Tamliknama' (deed of transfer) in favour  of
Musammat Meria and the context in which it came into  exist-
ence.  The name of the document or deed does not  very  much
matter.  Though the word ' malik ' is not a term of art,  it
has  been  held in quite a large number  of  cases,  decided
mostly by the Judicial Committee of the Privy Council,  that
the  word, as employed in Indian documents,  means  absolute
owner  and  that unless the context  indicated  a  different
meaning, its use would be sufficient to convey a full  title
even  without the addition of the words,  ' heirs ',  or   '
son ',    ' grandson '   and   ' great grandson'. Of course,
if there are other clauses in the document which control the
import of the word and restrict the estate to a limited one,
we  must give the narrower meaning; otherwise the word  must
receive its full significance.  Especially is this so,  when
the rule of interpretation laid down in Mohammed Shamsul  v.
Sewak Ram(') has come to be regarded as unsound.
    The  language employed  in  the  ' Tamliknama' (Ex.  II)
is almost similar to the language of the deeds construed  in
Bhaidas  Shivdas  v. Bai Gulab & Another('2)  and  Bishunath
Prasad Singh v. Chandika  Prasad Kumari and Others(s)  where
it was held that an absolute estate was conveyed.   I  agree
that the judgment and decree of the High Court should be set
aside  and  that  the decree of the trial  Judge  should  be
restored with costs to the appellant in all the Courts.
                          Appeal allowed.
Agent for the appellant: R.K.Kuba.
Agent for the respondents: S.P. Varma.
(1) L.R. 21 A. 7   (2) 49 I.A. 1      (3) 60 I.A. 56
      781
PETITIONER:
SRI RANGA NILAYAM RAMA KRISHNA RAO
        Vs.
RESPONDENT:
KANDOKORI CHELLAYAMMA alias MANGAMMA AND ANOTHER
DATE OF JUDGMENT:
17/10/1950
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION:
 1953 AIR  425            1950 SCR  806
 CITATOR INFO :
 R          1989 SC2113  (7)
ACT:
    Madras  Agriculturists' Relief Act (IV of 1938),  ss.  3
(D),   8,   10,   19--Sale  of  estate   in   execution   of
decree--Whether  owner ceases to be "Agriculturist"  pending
application to set aside sale-Applications to set aside sale
and  for relief  under Act'Maintainability-Order  confirming
sale and granting relief--Legality--C.P.C. (1908), O.XXI, r.
90--Execution  sale--Appeal  against order refusing  to  set
aside  sale--When  sale becomes absolute and  title  passes-
Receiver--Appointment of receiver, effect of.
HEADNOTE:
In  execution of a decree obtained on a mortgage a  vil-
lage owned by the mortgagor which was included in the  mort-
gage  was sold by the court on the 6th July 1935 and it  was
purhased  by the mortgagee. An application by the  mortgagor
under 0 .XXI,.r. 90, C.P.C., for setting aside the sale  for
irregulrities was dismissed, the sale was confirmed and full
satisifiction  of the decree was recorded, on the 6th  March
1943.   A few days afterwards the mortgagor and his  adopted
son  made an application under s. 19 of the Madras  Agricul-
turists' Relief Act, 1938, praying for relief under the Act,
and,  as this application also was dismissed they  preferred
two appeals, one from the order dismissing this  application
and  the other against the order of 6th March 1943  refusing
to set aside the sale.  The High Court of Madras held  that,
as  the  mortgagor's village had been sold he did  not  come
within the purview of el. (i)) of the proviso to 6. 3 of the
Madras Agriculturists' Relief Act and so he was entitled  to
claim  relief  under the Act and the debt  stood  discharged
under the provision of the Act, but the Bale was not  liable
to  be set aside; and in accordance with this  judgment  the
decree-holder  was directed to pay the amount for which  the
property had been sold with interest thereon: '
   Held per FAZL ALl and MUKHERJEA JJ.--(i)that the conclu-
sions  arrived at by the High Court were  self-contradictory
because if the sale was effective on the date it was held or
confirmed,  the decree was also satisfied on that  date  and
the  judgementdebtors were no longer entitled to invoke  the
provisions  of  the Act; (ii) that the High  Court  was  not
justified in law in deciding the appeal on the footing  that
the judgment-debtors ceased to be owners of the village from
the date of sale and on that account were not hit by cl. (D)
of the proviso to s. 3 of the Act inasmuch as when an appeal
is  preferred from an order rejecting an  application  under
O.XXI,  r. 90, C.P.C., to set aside an execution  sale,  the
sale  does not become absolute until the matter  is  finally
decided by the appellate court.
807
    Per CHANDRASEKHARA AIYAR J.--After the execution sale in
1935 the only interest which the judgment-debtors had in the
village  was to have the sale set aside under  the  relevant
provisions  of the Civil Procedure Code and  this  interest,
not  being an interest contemplated by s. 3 (ii) (a)  &  (b)
and s. 19 (1) of the Act, they were not "agriculturists" and
were not entitled to any relief under the Act.
Held also, per FAlL ALl and MUKHERJEA JJ.--A person does
not cease to be a land holder of an estate within the  mean-
ing  of  cl. (D) to the proviso to s. 3 of  the  Act  merely
because the estate is placed in the hands of a receiver.
    Bhawani  Kunwar v. Mathura Prasad Singh (I.L.R. 40  Cal.
89)  and Chandramani Shaha v. Anarjan Bibi (I.L.R.  61  Cal.
945) referred
      Judgment of the Madras High Court reversed.
JUDGMENT:
APPELLATE  JURISDICTION:  Civil Appeals Nos. 56  and  57  of
1949.  Appeals from the orders of the High Court of  Judica-
ture  at Madras (Wadsworth and Patanjali Sastri JJ.)   dated
24th  October, 1945,  in A.A.O. Nos. 372 of 1943 and 634  of
1944  which were appeals from the orders of the  Subordinate
Judge  of Ellore in E.A. No. 440 of 1937 and C.M.P. No.  152
of 1943 in O.S. No. 87 of 1923.
    P.  Somasundaram  (V.  V. Choudhry, with  him)  for  the
appellant.
    V. Rangachari (K. Mangachari, with him) for the respond-
ents.
1950.  October  17.   The Court  delivered  judgment  as
follows.
    FAZL  ALI J. --These appeals arise out of  an  execution
proceeding, and the main point to be decided in them is what
is  the effect of certain provisions of the Madras  Agricul-
turists'  Relief  Act  (Madras Act IV of  1938,  which  will
hereinafter  be  referred to as "the Madras  Act"),  on  the
rights of the parties.  How this point arises will be  clear
from a brief statement of the facts of the case.
It appears that in 1908, one Veeresalingam, the  husband
of  the first respondent, borrowed a sum of Rs.  9,000  from
one  Sitharamayya, and executed a mortgage bond in  his  fa-
vour.  Subsequently a suit was
808
instituted  by the mortgagee to enforce the mortgage  and  a
final  decree  in that suit was passed on the  19th  August,
1926.   Thereafter,  on the 28th October,  1931,the  decree-
holder  applied for the execution of the decree by the  sale
of  the  mortgaged  property.  In  193a,  the  decree-holder
transferred the decree to one Sobhanadri, after whose  death
his son, the appellant before us, was brought on the  record
as  his legal representative in the  execution  proceedings.
Several years before the assignment of the decree,  Veeresa-
lingam,  the  defendant, had died and his widow,  the  first
respondent. was therefore brought on the record as his legal
representative.  On the 6th July, 1935, two items of proper-
ty were sold in execution of the decree and purchased by the
decree- holder, these being :---(1) a village called  Tedlam
in  in West Godavari District; and (2) 4 acres and 64  cents
of  land in Madepalli village.  The first property was  sold
for  Rs. 21,000 and the second for' Rs. 1,025. As,  however,
the  amount due under the decree was only about  Rs.  17,860
and  odd, the sale of the second property  was  subsequently
set  aside  and the decree-holder deposited into  Court  the
excess amount  of  about Rs. 3,000 and odd after setting off
the  decretal amount against the price of the first item  of
property.   On  the 5th August, 1935, the  first  respondent
filed  an application under Order XXI, rule 90, and  section
47  of  the Code of Civil Procedure, to set aside  the  sale
held  in July, 1935, alleging certain irregularities in  the
conduct  of  the sale.  That application was  after  several
years heard by the Subordinate Judge of Ellore, who  by  his
order  dated the 6th March, 1943, dismissed it and  directed
the  sale  of the first property to be  confirmed  and  full
satisfaction  of  the decree to be entered. After  about  12
days,  i.e., on the 18th March, 1943, the  first  respondent
and  the  second  respondent, who had been  adopted  by  the
former  on the 12th March, 1936, under the will of her  hus-
band and was subsequently brought on record, filed an appli-
cation  under section 19 of the Madras Act praying for  cer-
tain reliefs under that Act. This application' was dismissed
on  the  22nd March, 1943.  Subsequently, two  appeals  were
filed on behalf
809
of  the respondents (who will hereinafter be  sometimes  re-
ferred to as judgment-debtors), one against the order refus-
ing  to set aside the sale under Order XXI, rule 90  of  the
Civil  Procedure Code, and the other against the order  dis-
missing the application under the Madras Act.  These appeals
were heard together by two learned Judges of the Madras High
Court  and  they took the view  that  the  judgment-debtors'
application under the Madras Act was  maintainable  notwith-
standing the fact that the sale had been confirmed and  full
satisfaction  of the decree recorded, and remitted the  case
to  the  trial Court  for  a  finding   on   the   following
questions,  namely
    (1) whether the applicants     were agriculturists; and
(2)  if  so, what would be the result  of  applying  the
provisions  of  Madras Act IV of 1938 to the  decretal  debt
against them ?
    So far as regards the judgment-debtors'  appeal  against
the order dismissing their application under Order XXI, rule
90, the Learned Judges were inclined to agree with the trial
Court that the sale should stand but declined to pass  final
orders in the appeal on the ground that "it would  seriously
prejudice the judgment-debtors in the connected  application
for relief under section 19 of the Madras Act IV of 1938."
    The Subordinate  Judge  answered the questions  referred
to him by the High Court on remand as follows :--
    (1)  The  judgment-debtors were not  agriculturists  and
were  not therefore entitled to the benefits of  the  Madras
Act;and
    (2) If they were agriculturists, they were not liable to
pay anything under the decree, as, in view of the provisions
of the Act, the debt stood discharged on the date of sale.
When  however  the  matter came up  before  the  learned
Judges of the High Court, they reversed the first finding of
the  trial  Court  and held that  the  judgmentdebtors  were
agriculturists within the meaning of the
810
Act, and that the debt stood discharged in view of section 8
(2)  of the Act.  At the same time, they held that the  sale
was  not liable to be set aside, and in this view  dismissed
one  of  the appeals and allowed the other.   Then  followed
certain proceedings to which it would have been  unnecessary
to  refer  but for the fact that the  judgment-debtors  have
attempted  to rely on     "them in support of one  of  their
preliminary  objections  to  the  maintainability  of  these
appeals.
     It  appears that on the next day after the judgment  of
the  High  Court was delivered in the two  appeals,  counsel
for  the respondents wrote a letter to the Registrar of  the
High Court to direct the posting of the two cases 'for being
mentioned'  before  the Court in order to  obtain  necessary
directions  consequent  on the orders passed by  it  in  the
appeals.   This  letter was not placed  before  the  learned
Judges  until the judgment had been signed by them  and  ac-
cordingly  the  judgment-debtors filed  two  petitions,  one
being  a  review petition to the High Court  and  the  other
being  a petition to the trial Court praying "that  the  de-
creeholder  may  be ordered to pay to  the  petitioners  the
purchase money of Rs. 21,000 with interest thereon at 6  per
cent.  per  annum  from the date of sale till  the  date  of
payment."  The trial Court dismissed the latter petition  on
the  ground that it was not maintainable, and the  judgment-
debtors  filed an appeal against the order.  The  appeal  as
well  as  the review petition of the  judgment-debtors  were
heard  together   by  the learned Judges  who  directed  the
decree-holder's  counsel to elect whether his  client  would
deposit  the purchase money into Court or have the sale  set
aside.   The decree-holder applied for a  short  adjournment
and  ultimately  on  the 15th November,  1946,  his  counsel
stated  that his client wished to retain the property  which
he had purchased and to pay the purchase  money into  Court.
Thereupon,  he  was directed to pay the sum  of  Rs.  21,000
together with interest within a months from that date.
      Subsequently,  the  appellant  (decree-holder)  having
obtained leave to appeal from the High Court preferred
      811
these  appeals before us.  It may be stated here that  along
with the application for leave to appeal, the appellant  had
filed  an application for excusing the  delay in filing  the
former  application which he accounted for mainly by  refer-
ring to the proceedings for the  review of the judgments  in
the  previous appeals to the  High Court.  This  application
was granted and the delay was condoned.
    As  has been already stated, the main point  arising  in
these  appeals relates to the effect of the Madras Act  upon
this  litigation.  That Act was passed and came into  effect
in 1938, while the execution proceedings were still continu-
ing.   It will be recalled that the sale took place  on  the
6th July, 1935; and the application for setting it aside was
not  disposed of until the 6th March, 1943.  But,  strangely
enough,  the  judgmentdebtors did not apply for  any  relief
under the Madras Act during this period, and they made their
application  only  after  the sale had  been  confirmed  and
satisfaction  of the decree had been entered.  How far  this
belated  application affects the right claimed by the  judg-
ment-debtors under the Act is one of the questions raised in
these  appeals, and I shall deal with it after referring  to
the  material provisions of the Act and the findings of  the
High  Court  which  have given  rise  to  several  debatable
points.
    The  sections  of  the Act which are  material  for  the
purpose of these appeals are sections 3, 8 and 19. Section 3
defines  an agriculturist and has a proviso stating that  in
certain cases a person shall not be deemed to be an agricul-
turist.   The  relevant clause of this proviso, to  which  I
shall  also have to advert later, is clause (D)  which  runs
thus :--
    "Provided  that  a person shall not be deemed to  be  an
'agriculturist' if he-
    (D)  is a landholder of an estate under the  Madras  Es-
tates  Land Act, 1908, or of a share or portion  thereof  in
respect of which estate, share or portion any sum  exceeding
Rs. 500 is paid as peshkash or any sum exceeding Rs. 100  is
paid as quit-rent, jodi, kattubadi,
812
poruppu or the like or is a janmi under the Malabar  Tenancy
Act, 1929, who pays any sum exceeding Rs. 500 as land  reve-
nue to the Provincial Government. ' '
    The precise question which is said to arise with  refer-
ence  to  this provision is whether by reason of  being  the
owners  of  village Tedlam, the judgment-debtors  should  be
held  to be not entitled to relief under the Act. The  other
material sections 8 and 19 run as follows :--
    "8.  Debts incurred before the 1st October, 1932,  shall
be scaled down in the manner mentioned hereunder, namely:-
    (1)  All interest outstanding on the 1st October,  1937,
in  favour of any creditor of an agriculturist  whether  the
same  be  payable under law, custom or contract or  under  a
decree of Court and whether the debt or other obligation has
ripened  into  a decree or not, shall be deemed to  be  dis-
charged,  and only the principal or such portion thereof  as
may  be outstanding shall be deemed to be the amount  repay-
able by the agriculturist on that date.
    (2)  Where  an agriculturist has paid  to  any  creditor
twice the amount of the principal whether by way of  princi-
pal or interest or both, such debt including the  principal,
shall be deemed to be wholly discharged.