Case ID: 786

Judgment:
Appeal No. 24 of 1955. Appeal by special leave from the judgment and decree dated March 11	 1949	 of the Bombay High Court	 in Letters Patent Appeal No. 22 of 1945	 arising out of the judgment and decree dated August 3	 1944	 of the said High Court in Second Appeal No. 754 of 1942. 695 M. section K. Sastri	 for the appellants. Naunit Lal	 for respondents. September 11. The Judgment of the Court was delivered by DAS C. J. This appeal by special leave has arisen out of Original Suit No. 582 of 1937 filed in the Court of the Subordinate Judge of Chikodi by one Tukaram Shidappa Borgavi alias Teli (since deceased) and his son Mallappa Tukaram Borgavi alis Teli (1st respondent herein) against the appellants for the redemption of certain mortgaged property and possession thereof free from encumbrances and for other ancillary reliefs. The mortgaged property consists of R. section No. 301 which is Devasthan Inam Lands burdened with the obligation to supply oil for Nand Deep	 i.e.	 keeping a lamp always burning before Shri Tholaba Deity in the village of Nipani. The said property originally belonged to two brothers Shiddappa and Annappa. The khata of the land	 however	 stood in the name of Shiddappa as the registered occupant under section 74 of the Bombay Land Revenue Code	 1879 (Bombay Act V of 1879). The facts material for our present purpose may now be stated. On January 23	 1888	 Shiddappa and Annappa executed a usufructuary mortgage (Ex.D 51) in favour of Lalchand Bhavanchand Gujar and Tuljaram Bhavanchand Gujar for Rs. 1	300 made up of Rs. 1	100 due under a previous mortgage and Rs. 200 presently advanced in cash. That deed provided that the mortgage money would be repaid within a period of three years and that the mortgagors would pay the judi and incur the expenses of the Nand Deep and that on failure of the mortgagors to meet the said out goings	 the mortgagees would incur the said expenses and add the same to their claim on the mortgage. On March 10	 1900	 Shiddappa alone executed a simple mortgage (exhibit D 52) for Rs. 600 in favour of the same mortgagees. A part of the consideration for this simple mortgage consisted of moneys borrowed by both the brothers on bonds executed by both of them. This simple mortgage deed provided 696 that the mortgagees would bear the expenses of the Nand Deep and debit the same to the mortgagors in the mortgage account. On March 22	 1900	 before the simple mortgage deed was presented for registration	 Shidappa	 who was the registered occupant	 gave a Rajinama under section 74 of the Bombay Revenue Code recording his desire to submit an unconditional surrender of the above mentioned khata of R. section No. 307 from the end of the then current year. On the same day	 the mortgagees by a Kabuliyat prayed that the occupancy in the mortgaged property may be granted to them. Both the Rajinama and the Kabuliyat were sanctioned by the Mamlatdar on May 5	1900. Shiddappa having died	 Annappa in 1905 applied to the Mamlatdar alleging that the mortgaged property was Devasthan Inam and praying for the cancellation of the transfer in favour of the mortgagees and for placing the mortgaged property in his name. This application was rejected. In 1907 Shiddappa 's son Tukaram (the original first plaintiff herein)and Annappa	 the brother of Shiddappa	 filed suits against the mortgagees for accounts to be taken under the Deccan Agriculturists ' Relief Act. That suit having been dismissed	 they appealed to the District Court	 Belgaum	 but that appeal was dismissed on March 15	 1909. Annappa again applied for the lands being put in his possession	 but that application also was rejected on August 4	 1910. Thereafter	 in 1911 Annappa and Tukaram	 the brother and son respectively of Shiddappa	 filed C. section No. 362 of 1911 under the same Deccan Agriculturists ' Relief Act for the same reliefs. That suit was also dismissed and the appeal there from met with a like fate on March 17	1914. In 1922 Annappa died without any issue. The mortgagee Lalchand died issueless and the mortgagee Tuljaram died leaving a son named Lilachand Tuljaram who became entitled to the entire mortgage securities. On November 1	 1937	 Tukaram and	 his son Ganpat	 alleging that they were the legal representatives of both Shiddappa and Annappa	 filed Original Suit No. 586 of 1937	 out of which this appeal arises	 against the appellants Lilachand and his three sons for the redemption of the mortgages. In the 697 written statement the defendants appellants pleaded that the deceased Shiddappa having sold the mortgaged property to the mortgagees	 the equity of redemption became extinguished and that as Shiddappa alone was the registered occupant	 the Rajinama given by him	 was valid and binding on Annappa. They further alleged that the plaintiffs were not the heirs of the deceased Annappa	 for the latter had died after having transferred his interests in the mortgaged properties to others. It transpires that Annappa died in 1922 after having made and published his last will and testament bequeathing his interest in the mortgaged properties to one Krishna Kallappa	 that Krishna Kallappa applied for Letters of Administration in respect of Annappa 's estate and that in spite of the opposition of Tukaram	 Letters of Administration with a copy of the will annexed was granted to Krishna Kallappa. Krishna Kallappa having died	 his four sons were added as party defendants to this suit and then on their own application they were transposed to the category of plaintiffs. The trial Court held that the Rajinama executed by Shiddappa did not extinguish the title of the mortgagors in the mortgaged property	 that the plaintiffs were agriculturists	 that they were bound to pay the amount also under the simple mortgage and that on taking accounts the mortgages had redeemed themselves. Accordingly the trial court passed a decree for possession declaring that both the mortgages had been satisfied. The mortgagees	 defendants 1 to 4	 appealed to the District Court	 Belgaum	 in Regular Civil Appeal No. 322 of 1940. The District Court held that by the Rajinama	 Shiddappa intended to convey the title in the suit land to the mortgagees and hence Shiddappa 's heirs	 the plaintiffs 1 and 2	 could not claim redemption of Shiddappa 's one half share in the suit land. As regards Annappa 's share	 the learned Judge held that the Rajinama had not the effect of transferring the interest of Annappa to the mortgagees and that inasmuch as the mortgages were subsisting	 the defendants could not acquire title by adverse possession. In this view he allowed the appeal in part with the result that 698 the suit was dismissed so far as the claims of plaintiffs 1 and 2 were concerned but the claims of plaintiffs 3 to 6 as the legal representatives of Annappa were upheld and they were allowed to redeem Annappa 's one half share of and in the mortgaged property on payment of one half of the amounts due under the two mortgages. The mortgagee defendants 1 to 4 appealed to the High Court in Second Appeal No. 754 of 1942 against that part of the decree which rejected their claim to Annappa 's share and the plaintiffs 1 and 2 also filed Second Appeal No. 1011 of 1942 against the dismissal of their claim for redemption of one half share of Shiddappa in the mortgaged property. Both the appeals were disposed of by a common judgment by Weston	 J. The learned Judge held that	 so far as Shiddappa 's share was concerned	 the Rajinama was a complete relinquishment of his interest	 but as regards Annappa 's share	 he agreed with the District Judge 's conclusion that Shiddappa could not bind Annappa 's share by the Rajinama and in this view of the matter he dismissed both the appeals. Against this decree both the parties preferred Letters Patent Appeals	 namely	 L.P.A. No. 22 of 1945 which was filed by defendants 1 to 4 and L.P.A. No. 16 of 1945 which was filed by plaintiffs 1 and 2. The Division Bench dismissed both the appeals. The present plaintiff No. 1	 the son of Tukaram (the deceased son of Shiddappa who was the original plaintiff No. 1) has not come up to this Court and	 therefore	 the decision of the Division Bench has become final so far as he is concerned. The High Court having refused to grant leave to appeal to this Court	 the mortgagees defendants 1 to 4 applied to and obtained from this Court special leave to appeal against the decision of the Division Bench in so far as it upheld the rejection of their claims to Annappa 's half share in the mortgaged property. Hence the present appeal. The plaintiffs respondents	 who are the legal representatives of Annappa and against whom the present appeal is directed	 have not entered appearance in this appeal. Learned advocate appearing in support of the appeal urges that the Rajinama and the Kabuliyat taken 699 together evidenced a transfer of title from the mortgagors to the mortgagees and	 therefore	 operated to extinguish the equity of redemption not only of Shiddappa but also of Annappa	 for there is sufficient evidence on record that Shiddappa was the manager and karta of the joint family and that in the matter of passing the Rajinama he had acted in that capacity and	 therefore	 the Rajinama was binding on his brother Annappa. As pointed out by the Division Bench in their judgment in the Letters Patent Appeal	 this case of Shiddappa having acted as karta was nowhere made by the defendants appellants in their written statement and	 in agreement with the High Court	 we declined to allow learned advocate for the appellants to make out such a new case. This case being thus out of the way	 learned advocate for the appellants urges that under section 74 of the Bombay Land Revenue Code	 as Shiddappa was the registered occupant	 the Rajinama filed by him operated upon the entire occupancy and amounted to a relinquishment of the rights of both the brothers Shiddappa and Annappa. Section 74 of the Bombay Land Revenue Act	 as it stood at all material times	 ran as follows : " An occupant may	 by giving written notice to the Mamlatdar or Mahalkari	 relinquish his occupancy	 either absolutely or in favour of a specified person; provided that such relinquishment applied to the entire occupancy or to whole survey numbers	 or recognized shares of Survey Numbers. An absolute relinquishment shall be deemed to to have effect from the close of the current year	 and notice thereof must be given before the 31st March in such year	 or before such other date as may be from time to time prescribed in this behalf for each district by the Governor in Council. A relinquishment in favour of a specified person may be made at any time. When there are more occupants than one	 the notice of relinquishment must be given by the registered occupant; and the person	 if any	 in whose favour an occupancy is relinquished	 or	 if such 700 occupancy is relinquished in favour of more persons than one	 the principal of such persons	 must enter into a written agreement to become the registered occupant	 and his name shall thereupon be substituted in the records for that of the previous registered occupant. " Reliance is placed on the concluding paragraph of the section which provides that when a relinquishment is made in favour of more persons than one the principal one of such persons must enter into a written agreement to become the registered occupant and his name shall thereupon be substituted in the records for that of the previous registered occupant. This provision	 it is said	 makes it clear that so far as the revenue authorities are concerned	 it is the registered occupant who represents the entire occupancy and the fact that the notice of relinquishment must	 under the section	 be given by the registered occupant also supports the contention that the Rajinama passed by the registered occupant binds all the occupants. We are unable to accept this argument as correct. The concluding paragraph of the section clearly recognises that a relinquishment may be in favour of more persons than one. It is true that the principal one of such persons must enter into a written agreement to become the registered occupant. This is for facilitating the purpose of the Code but it does not mean that the other persons in whose favour the occupancy is relinquished cease to have any right. That their right as occupants remains is clearly recognised by the opening paragraph of the section which gives an occupant a right to relinquish his occupancy either absolutely or in favour of a specified person. This right is given to all occupants	 if there are more than one	 for the singular includes the plural. It is true that where there are more occupants than one	 the notice of relinquishment on behalf of any occupant must be given by the registered occupant. That does not mean	 in the absence of any specific pleading and cogent proof	 that a notice of relinquishment given by the registered occupant must necessarily be a notice on behalf of all occupants or any particular occupant other than the 701 registered occupant	 or that the registered occupant has the right to give such a notice without reference to the other occupants so as to effect their interest in the occupancy. Turning to the Rajinama	 it is clear that Shiddappa did not purport to file	 the same on behalf of Annappa nor had he any right to do so; by reason only of his being the registered occupant. In Lalchand Sakharam Marwadi vs Khendu Kedu Ughade (1) one out of four brother mortgagors	 who was the registered occupant of the mortgage land	 passed a Rajinama of the land in favour of the mortgagee	 who executed a Kabuliyat for the same. The remaining three mortgagors sued to redeem the mortgage alleging that the Rajinama passed by their brother conveyed only his interest and nothing more. It was held that though the conveying brother was a co mortgagor with the plaintiffs	 he had no right to sell their interest in the equity of redemption and that	 so far ' as they	 were concerned	 he was in the same position as an outsider. It is true that no specific reference was made in the judgment to section 74 of the Bombay Land Revenue Code	 but the actual decision in that case	 the facts of which are very similar to those of the instant case	 quite clearly indicates the court 's understanding of the law applicable to those facts and that law was nothing but the provisions of section 74 of the Code. In our opinion	 on a correct interpretation of section 74	 where there are more occupants than one in respect of the same occupancy each occupant has his own rights and the fact of registration of one of them as the registered occupant attracts the operation of the Code and confers certain rights or imposes certain obligations on the registered occupant as laid down in the Code but does not take away the rights of other occupants. It is true that if any of the occupants other than the registered occupant desires to relinquish his occupancy. he cannot himself give a notice of relinquishment but must give it by and through the registered occupant Nevertheless the registered occupant	 in the absence of any authority	 express or implied	 to be clearly pleaded and strictly proved	 has no inherent or independent (1) 	 89 702 right to give any such notice so as to affect the interests of the other occupants. In our opinion the Rajinama passed by Shiddappa did not affect the right of Annappa and his equity of redemption subsisted at all material times. In our judgment the conclusion of the Division Bench of the High Court in the Letters Patent Appeals was correct and the principal contention urged before us must be repelled. Learned Advocate for the appellant then faintly urges that Annappa 's interest in the property was extinguished by reason of the adverse possession exercised by the mortgagees Since at least 1905 when the claim of the Annappa to get the mortgaged property registered in his name failed. It should be remembered that the mortgagees came into possession of the property pursuant to the usufructuary mortgage. Therefore their possession had a lawful origin. A mere assertion of an adverse title on the part of the appellants cannot affect the subsisting equity of redemption of the mortgagors or operate to shorten the period of limitation prescribed for a suit for redemption. In view of the observation of the Judicial Committee in Khiarajmal vs Daim (1)	 the learned advocate for the appellants did not seriously press the point of limitation any further. No other point having been urged before us in this appeal	 the appeal must	 for reasons stated above	 be dismissed. As the respondents did not appear	 there will be no order as to costs. Appeal dismissed. (1) (1904) L. R. 32 Ind. App.

Summary:
The suit out of which the present appeal arose was one for redemption of some occupancy lands	 owned and mortgaged by two brothers	 S and A	 the Khata of the lands standing in the name of S as the registered occupant under section 74 of the Bombay Land Revenue Code	 1879. The mortgage	 which was a usufructuary one	 was executed by S and A in 1888 in favour of the predecessors in interest of the appellants. By a Rajinama filed under section 74 of the Code in 1900	 S made an unconditional 88 694 surrender of the occupancy. On the same day the mortgagees by a Kabuliyat prayed that the occupancy in the mortgaged property might be granted to them. Both the Rajinama and the Kabuliyat were granted by the Mamlatdar. By the Rajinama S did not	 however	 purport to relinquish the occupancy on behalf of A. After the death of S	 A applied to the Mamlatdar for the cancellation of the transfer in favour of the mortgagees and registering the mortgaged property in his name. That application was rejected. The heirs of S	 claiming also to be the heirs of A	 brought the suit for redemption. The defence of the appellants was that the plaintiffs were not the heirs of A and that the right of redemption in the entire occupancy had been extinguished by the Rajinama. The administrators of the estate of A were then added as defendants but were later on transposed to the category of co plaintiffs. The courts below found against the appellants. Hence this appeal by special leave. The question for determination was whether the surrender by S amounted to a relinquishment of the entire occupancy including the share of A. Held	 that the Rajinama could in no way affect the right of A to his share	 in the occupancy and the right of redemption in respect of his share still subsisted. Under section 74 of the Bombay Land Revenue Code	 1879	 rightly construed	 the registered occupant had no inherent or independent right	 in the absence of any authority	 express or implied	 which must be clearly pleaded and strictly proved	 to give a notice of relinquishment so as to affect the interest of other occupants as well. Although the section conferred certain rights and imposed certain obligations on the registered occupant	 it was not intended to take away the rights of other occupants. Lalchand Sakharam Marwadi vs Khendu Kedu Ugbade	 22 Bom. L.R. 1431	 referred to. Held	 further	 that even though A 's application to get the mortgaged property registered his name had failed	 there could be no question of adverse possession since the possession of the mortgagees had a lawful origin in the usufructuary mortgage. Nor could a mere assertion of adverse title affect the subsisting equity of redemption or shorten the prescribed period of limitation for the suit. Khiarajmal vs Diam	 I.L.R. 	 referred to.