-

S.C.R. SUPREME COURT REPORTS 693

and the provisions contained in Part XVIII of the

Constitution. This contention also fails.

It now remains to notice three points that were

urged during

the course of arguments on behalf of the

appellants, namely, (i) s. 4 (1) of the Ordinance is hit

by Art.

20 (1) of the Constitution, (ii) s. 11 (1) is hit by

Art. 22 (1) of the Constitution, and (iii) the' Special

Judge has no jurisdiction to try an offence under the

Explosiv-e Substances Act. Apart from the fact that

these points not having been raised by the appellants

in their writ petition or urged before the High Court,

we should be reluctant to permit them to raise these

points for the first time in this Court, we may, in

passing, point

out that the offences for which the

appellants are being prosecuted are said to have taken

place in June 1957 and that they have been allowed to

engage lawyers of their choice. They can therefore

have no grievance so far as the first two points are

concerned

and we leave them to be decided in a

case

where there is grievance. There is no substance in the

third point.

There is no force therefore in this appeal

and it is

hereby dismissed.

Appeal dismissed.

LILACHAND·TULJARAM GUJAR AND OTHERS

v.

MALLAPPA TUKARAM BORGA VI AND OTHERS

(S. R. DAS, C.J., M. HIDAYATULLAH and

K. c. DAS GUPTA, JJ.)

Occupancy, relinquishment of-Registered occupant surrender­

ing occupancy-Such surrender, if and when can bind other occupants

-Bombay Land Revenue Code, r879 (Bom. V of r879), s. 74.

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 s. 74 of the Bombay

Land Revenue Code, 1879. The mortgage, which was a usufruct­

uary one, was executed by S and A in 1888 in favour of the

predecessors-in-interest of the appellants. By a Rajinama filed

under s.

74 of the Code in

1900, S made an unconditional

88

I959

Rehman Shagoo

and Others

v.

State of Jammu

and Kashmir

Wanchooj.

I959

September II.

694 SUPREME COURT REPORTS [1960(1))

1

959 surrender of the occupancy. On the same.day the mortgagees by

a Kabuliyat prayed that the occupancy in the mortgaged property

, Lilachand. might be granted to them. Both the Rajinama and· the Kabuliyat

Tul;aram Gu;ar were granted by the Mamlatdar. By the Rajinama S did not,

v. however, purport to relinquish the occupancy on behalf of A.

Mallappa Tukaram After the death of S, A applied to the Mamlatdar for the cancel-

Bor1avi lation 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 determin­

ation was whether the surrender by

S amounted to a relinquish­

ment

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 s. 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 v. Khendu Kedu Ugbade, 22

Born. L.R. 1431, referred to.

Held, further, that even though A's application to get the

mortgaged property register_ed in 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 v. Diam, I.L.R. 32

Cal. 296, referred to.

CIVIL APPELLATE JURISDICTION: Civil 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. 22of1945, arising

out of the judgment and decree dated. August 3, 1944,

of the said High Court in Second Appeal No. 754 of

1942.

l

S.C.R. SUPREME COURT REPORTS 695

M. S. K. Sastri, for the appellants.

I959

N aunit Lal, for respondents. Lilachant!.

Tuljaram Gujar

1959. September 11. The Judgment of the Court v.

was delivered by Mallappa Tukaram

DAS C. J.-This appeal by special leave has arisen Borgavi

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 (lst res-

pondent herein) against

the appellants for the redemp-

tion of certain mortgaged property and possession

thereof free from encumbrances

and for other ancillary

reliefs.

The mortgaged property consists of R.

S.

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 ori-

ginally belonged

to two brothers Shiddappa and

Annappa. The khata of the land, however, stood in

the name of Shiddappa as the registered occupant under

s.

_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 advamced in cash. That deed pro­

vided 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 outgoings, the mortgagees would incur the said

expenses

and add the same to their claim on the

mortgage.

On March Io,· 1900, Shiddappa alone

executed a simple mortgage (Ex. D-52) for Rs. 600 in

favour of

the same mortgagees. A part of the

consider­

ation for this simple mortgage consisted of moneys

borrowed by both

the brothers on bonds executed by

both of them. This simple mortgage deed provided

Das C. ].

696 SUPREME COURT REPORTS [1960(1)]

'959 that the mortgagees would bear the expenses of the

Naud Deep and debit the same to the mortgagors in

Lilachand h

Tuljaram Gujar t e mort,gage account. On March 22, 1900, before the

v. simple mortgage deed was presented for registration,

Mallappa Tukaram Shidappa, who was the registered occupant, gave a

Borgavi Rajinama under s. 74 of the Bombay Revenue Code.

recording his desire to submit an unconditional sur-

Das c. J. render of the abovementioned khata of R. S. 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 sanct.ioned 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 mort­

gaged 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 J\Iarch 15,

1909. Annappa

again a pp lied for the lands being put in his possession,

but that application also was rejected on August4, 1910.

Thereafter, in 1911 Annappa and Tukaram, the

brother and son respectively of Shiddappa, filed C. S.

No. 362 of 1911 under the same Deccan Agriculturists'

Relief

Act for the same reliefs. That suit was

als6

dismissed and the appeal therefrom 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

S.C.R. SUPREME COURT REPORTS 697

written statement the defendants-appellants pleaded

1

959

that the deceased Shiddappa having sold the mortgaged Lilacha..a

property to the mortgagees, the equity of redemption Tuljaram Gujar

became extinguished and that as Shiddappa alone was v.

the registered occupant, the Rajinama given by him Mallappa Tukaram

was valid and binding on Annappa. They further Borgavi

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 sui.t

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 mortga­

gors 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 posses­

sion declaring

that both the mortgages had been

satisfied. 'l'he mortgagees, defendants I

to 4, appealed

to the District

Court, Belgaum, in Regular Civil Appeal

No. 322of1940. 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 I 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

~he Rajinama had not the effect of transferring the

mterest of Annappa to the mortgagees and that inas­

much 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

Das

C. ].

'959

Lilachantl

698 SUPREME COURT REPORTS [1960(1)]

the suit was dismissed so far as the claims of plaintiffs

1 and 2 were concerned but the claims of plaintiffs

3 !o 6 as the legal representatives of Annappa were

Tuljaram Gujar

v. upheld and they were allowed to redeem Annappa's

Mallappa Tukaram one half share of and in the mortgaged property on

Bor:avi payment of one half of the amounts due under the two

Das C.].

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 I to 4 and L.P.A. No. 16 of 1945 which

was filed

by plaintiffs I and 2. The Division Bench

dismissed

both the appeals. The present plaintiff

No.

I, the son of Tukaram (the deceased son of

Shiddappa who was the original plaintiff No. I) has

not come up to this Court and, therefore, the decision

of the Division Bench has become final so far as he is

conceraed. The High Court having refused to grant

leave to appeal to this Court, the mortgagees-defend­

ants I 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

Kabuliya.t taken

S.C.R. SUPREME COURT REPORTS 699

together evidenced a transfer of title from the mort­

gagors to the mortgagees and, therefore, operated to

extinguish the equity of redemption not only of

I959

Lilachand

Tuljaram Gujar'

Shiddappa but also of Annappa, for there is sufficient v.

evidence on record that Shiddappa was the manager Mall«ppa Tukaram

and karla of the joint family and that in the matter of Borgavi

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 ae:ted 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 s. 74 of the Bombay Land

Revenue

Code, as Shiddappa was the registered occup-

ant, 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 occup­

ancy, 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

oft.he 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

Das C. ].

z959

Lila&hand

Tuljaram Gujar

v.

Mallappa Tukaram

Borgavi

Dase. J.

700 SUPREME COURT REPORTS [1960(1})

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

substitut­

ed 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

agree­

ment 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

facilitat­

ing the purpose of the Code but it does not mean that

the othe'r 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

oc­

cupant a right to relinquish his occupancy either abso­

lutely 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 relin­

quishment on behalf of any occupant must be given

by the regist1Jred 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 a.II

occupants or any particular occupant other than the

S.O.R. SUPREME COURT REPORTS 701

registered occupant, or that the registered occupant z959

has the right to give such a notice without reference Lilachan4

to the other occupants so as to effect their interest in Tuljaram Gujar

the occupancy. Turning to the Rajinama, it is clear v

that Shiddappa did not purport to file the same onMallappa

0

Tukaram

behalf of Annappa nor had he any right to do so ; by Borgavi

reason only of his being the registered occupant. In

LalchandSakharam Marwadiv. Khendu Kedu Ughade(') Dase~/.

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

ma.de in the judgment to s. 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 inatant

case, quite clearly indicates the court's understanding

of the law applicable to those facts and t~t law was

nothing but the provisions of s. 74 of the Code. In

our opinion, on a. correct interpretation of s. 74, where

there are more occupants

than one in respect of the same occupancy ea.ch 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 qr imposes certain obligations on

the regiStered occupant as la.id 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 re],inquishment but

nmst give it by and through the registered occupant.

Nevertheless

the registered occupant, in the absence of any authority, express or implied, to be clearly plead·

ed and strictly proved, has no inherent or independent

(I) 22 Bom L.R. 14~1,

19

702 SUPREME COURT REPORTS [1960(1)]

z959 right to give any such notice so as to affect the inter-

Lilachand ests of the other occupants. In our opinion the

Tuljaram Gujar Rajinama passed by Shiddappa did not affect the

v. right of Annappa and his equity of redemption sub-

Mallappa Tukaram sisted at all material times. In our judgment the

Borgavi conclusion of the Division Bench of the High Court in

Das C.j.

the Letters Patent Appeals was correct and the prin­

cipal 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

exer­

cised 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 remem­

bered 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

appel­

lants 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 v. Daim (1), the learned advocate for the

appellants did not seriously press the point of limit­

ation 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. 23.