http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

PETITIONER:

MAHABIR GOPE AND OTHERS

Vs.

RESPONDENT:

HARBANS NARAIN SINGH AND OTHERS.

DATE OF JUDGMENT:

14/04/1952

BENCH:

AIYAR, N. CHANDRASEKHARA

BENCH:

AIYAR, N. CHANDRASEKHARA

MAHAJAN, MEHR CHAND

BOSE, VIVIAN

CITATION:

1952 AIR 205 1952 SCR 775

CITATOR INFO :

A 1956 SC 305 (11)

R 1958 SC 183 (7,10,14)

E 1966 SC1721 (9)

D 1968 SC1466 (7)

R 1972 SC 637 (4)

R 1980 SC 696 (10,11)

RF 1981 SC1881 (17)

RF 1981 SC2146 (8,11,14)

RF 1988 SC 299 (8)

RF 1989 SC 436 (38,42)

ACT:

Bihar Tenancy Act, 1937, ss. 5 (2), 20, 21--Zuripeshgi

lease- Lease by mortgagee for a term of 3 years--Lessee

continuing in possession for over 30 years--Whether acquires

occupancy rights-Construction of lease--Mortgagee's power to

lease--Limitations-Transfer of Property Act, (IV of 1882),

s. 76 (a) and (e).

HEADNOTE:

As a general rule a person cannot transfer or otherwise

confer a better title on another than he himself has and a

mortgagee cannot therefore create an interest in mortgaged

property which will enure beyond the termination of his

interest as mortgagee. Further, a mortgagee cannot during

the subsistence of the mortgage act in a manner detri-

mental to the mortgagor's interests, such as by giving a

lease which may enable the tenant to acquire permanent

occupancy rights in the land, thereby defeating the mortga-

gor's right to khas possession.

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 is an exception to the general rule,

but to fall within this exception the settlement of the

tenant by the mortgagee must have been a bona fide one.

The exception will not apply in a case where the terms of

the mortgage prohibit the mortgagee from making any settle-

ment of tenants on the land either expressly or by necessary

implication.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

Where a zuripeshgi ijara deed contained the following

clause: "It is desired that the ijaradars should enter into

possession and occupation of the share let out in ijara

(being the kkudkasht land under his own cultivation), culti-

vate them, pay 2 as. as reserved rent year after year to us,

the executants, and appropriate the produce thereof year

after year on account of his having the ijara interest" and

the kabuliat executed by the tenant to whom the lands were

leased by the mortgagee for a period of 3 years referred to

the ijara deed and contained an express provision that he

(the tenant) would give up possession of the tika land on

the expiry of the lease without urging any claim on the

score that the lands were his kasht lands: Held, confirming

the decision of the High Court, that the settlement was not

a bona fide one and the successors of the tenant (the de-

fendants) did not acquire permanent rights of occupancy in

101

776

the demised lands under the Bihar Tenancy Act even though

the lands had been in the occupation of the tenant and his

successors for over 30 years after the expiry of the lease.

Held further, that the defendants could not acquire

occupancy rights under sections 20 and 21 of the Bihar

Tenancy Act as the mortgagee was neither a "proprietor" nor

a "tenure-holder" or "under-tenure-holder" and the tenant

and his successors were not, therefore, "settled raiyats"

within the meaning of section 5, cl. (2), of the said Act.

Manjhil-Lal Biswanath Shah Deo. v. Shaikh Mohiuddin

(I.L.R. 24 Cal. 272). Babu Bairo Nath Ray v.Shanke Pahan

(I.L.R. 8 Pat. 31) and Binda Lal Pakrashi and Others v. Kalu

Pramanik and Others (I.L.R. 20 Cal. 708) distinguished.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 143 of

1951. Appeal by special leave from the judgment and decree

dated 23rd March,-1950, of the High Court of Judicature at

Patna (Reuben and Jamuar JJ.) in appeal from Original Decree

No. 206 of 1946 arising out of a decree dated 31st January,

1946, of the Subordinate Judge at Patna in Title Suit No.

55/4 of 1943-45.

Saiyid Murtaza Fazl Ali for the appellants.

N.C. Chatterjee (A. N. Sinha, with him)for the respond-

ents Nos. 1 to 9.

B.K. Saran for the respondents Nos. 11 to 16.

1952. April 14. The Judgment of the Court was deliv-

ered by

CHANDRASEKHARA AIYAR J.--This is an appeal by the

defendants from a decree of the Patna High Court reversing a

decree of the Subordinate Judge's Court at Patna, and de-

creeing the plaintiffs' suit for possession against the

defendant first party who may be called for the sake of

convenience as 'the Gopes'.

The lands were khudkhasht lands, partly belonging to

the plaintiffs first party and partly belonging to Mussammat

Anaro Kuer, from whom the plaintiffs second and third par-

ties trace title. The ancestors of plaintiffs first party

gave on 28-9-1899 an ijara with possession to one Lakhandeo

Singh an ancestor of the defendant second party under Exhib-

it I (b) for a term

777

of six years from 1307 Fasli to 1312 Fasli for Rs. 540. The

poshgi money was to be repaid in one lump sum at the end of

Fasli 1312. If there was no redemption then the ijara was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

to continue in force till the money was repaid. Mussammat

Anaro Kuer gave her share in ijara to the same Lakhandeo

Singh orally on 10th June, 1905, for a period of three years

for Rs. 542. Lakhandeo Singh, who is represented now by the

defendant second party, made a settlement of the land thus

got by him (8.26 acres or 13 bighas in all) with one Ram Lal

Gope an ancestor of the defendant first party for a period

of three years from Fasli 1315 to Fasli 1318. There was a

patta in-favour of the tenant and a kabuliyat in favour of

the landlord. This was in 1908. The mortgage was redeemed

in June 1942 by payment in proceedings under section 83 of

the Transfer of Property Act, When the plaintiffs went to

take possession, they were resisted by the Gopes (defendant

first party), and after unsuccessful criminal proceedings,

the plaintiffs filed the present suit. The Subordinate

Judge dismissed it, holding that the Gopes were raiyats

having acquired permanent occupancy rights in the lands as

the result of the settlement by the mortgagee, Lakhandeo

Singh. On appeal the High Court set aside this decision and

gave the plaintiffs a decree for possession on the finding

that the defendants were not raiyats and had no permanent

rights of occupancy. This court granted to the defendants

special leave to appeal.

The suit was in the alternative for recovery of the value

of the lands as compensation or damages from the defendant

second party in case it was found that the defendant first

party could not be ejected. The trial court decreed this

alternative claim and awarded to the plaintiffs compensation

at the rate of Rs. 200 per bigha. The defendant second

party carried the matter in appeal to the High Court and

succeeded. But we have nothing to do with this matter in the

present appeal.

At the trial, the plaintiffs alleged and maintained that

the lands were their zirat lands within the meaning

SUPREME

778

of section 116 of the Bihar Tenancy Act and that the defend-

ant first party could acquire no rights of occupancy in the

same. The Subordinate Judge found against this contention

and held that they were khud kasht or bakasht lands of the

proprietor, in which rights of occupancy can be acquired He

negatived the plea of the defendants that they were their

ancestral raiyati lands. He also held that there was no

collusion between the mortgagee Lakhandeo Singh and Ram Lal

Gope in the matter of settlement of lands. It is on the

basis of these findings which were accepted by both the

parties that the hearing of the appeal proceeded before the

High Court.

It was held by the Privy Council in Bengal Indigo

Company v. Roghobur Das(1) that "a zuripeshgi lease is not a

mere contract for the cultivation of the land at a rent, but

is a security to the tenant for the money advanced". They

observed, speaking of the leases before them, that "the

leases in question were not mere contracts for the cultiva-

tion of the land let; but that they were also intended to

constitute, and did constitute, a real and valid security to

the tenant for the principal sums which he had advanced, and

interest thereon. The tenants' possession under them was,

in part at least, not that of cultivators only, but that of

creditors operating repayment of the debt due to them, by

means of their security." These words

apply to the ijara deed before us; its dominant intention

was to provide a security for the loan advanced and not to

bring into existence any relationship of landlord and ten-

ant.The general rule is that a person cannot by transfer or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

otherwise confer a better title on another than he himself

has. A mortgagee cannot, therefore, create an interest in

the mortgaged property which will enure beyond the termina-

tion 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 de-

structive

(1) (1897) 24 Cal. 272.

779

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. A mortgagee cannot during the

subsistence of the mortgage act in a manner detrimental to

the mortgagor's interests such as by giving a lease which

may enable the tenant to acquire permanent or occupancy

rights in the land thereby defeating the mortgagor's right

to khas possession; it would be an act which would fall

within the provisions of section 76, subclause (e), of the

Transfer of Property Act.

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 is a different matter altogether. It

is an exception to the general rule. The tenant cannot be

ejected by the mortgagor even after the redemption of the

mortgage. He may become an occupancy raiyat in some cases

and a non-occupancy raiyat in other cases. But the settle-

ment of the tenant by the mortgagee must have been a bona

fide one. This exception will not apply in a case where the

terms of the mortgage prohibit the mortgagee from making any

settlement of tenants on the land either expressly or by

necessary implication.

Where all the zamindari rights are given to the mortga-

gee, it may be possible to infer on the proper construction

of the document that he can settle lands with tenants in the

ordinary course of management and the tenants might acquire

certain rights in the land in their capacity as tenants. In

the case of Manjhil-Lal Biswa Nath Shah Deo v. Shaikh Mo-

hiuddin(1), there was a bona fide settlement of mortgaged

rayati land by the mortgagee with tenants and it was held

that the mortgagor was not entitled to evict them after

redemption. The earlier decision of Babu Bhairo Nath Ray v.

Shanke Pahan(2), related to bakasht lands, and

(1) (1927) 8 Pat. L.T. 92. (2) (1929) I.L.R. 8 Pat.31.

780

there was no provision in the zuripeshgi lease restricting

the power of the mortgagee lessee as regards settlement of

tenants. Khudkasht lands and bakasht lands are really in

the nature of raiyati lands which come into the possession

of the proprietor by surrender, abandonment or purchase.

In the present case. we have the following clause in the

ijara deed: "It is desired that the ijaradar should enter

into possession and occupation of the share let out in ijara

(being the khudkasht land under his own cultivation), culti-

vate them, pay 2 annas as reserved rent year after year to

us, the executants, and appropriate the produce thereof year

after year on account of his having the ijaradari interest."

This term disentitles the mortgagee from locating tenants on

the land mortgaged. Ram Lal Gope, the grandfather of the

defendants first party, who executed the kabuliat in 1908

must have known of the title of Lakhandeo Singh the mortga-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

gee and the terms under which he held the lands under the

registered zuripeshgi ijara deed and this is most probably

why the tenant not only took the lease for a period of 3

years, but expressly undertook to give up possession over

the thika lands on the expiry of the period of lease without

urging any claim on the score that the lands were his old

kasht lands. His kabuliat (Exhibit 11) in fact refers to

Lakhandeo Singh's ijaradari interest. In view of these

facts, the learned Judges of the High Court stated that they

were not prepared to hold that the settlement was a bona

fide one or the mortgagee was within his rights in settling

these lands.

Strong reliance was placed for the appellants on the

Full Bench decision Binad Lal Pakrashi and Others v. Kalu

Pramanik and Others (1) where it was held that a person

inducted into possession of land as a raiyat even by a

trespasser became a non-occupancy raiyat within the meaning

of section 5, sub-section, 2 of the Bengal Tenancy Act and

was protected from ejectment. But this decision has been

subsequently

(1) (1893) I.L.R. 20 Cal. 708.

781

explained away in several cases as based on the proposition

that the rights must have been bona fide acquired by them

from one whom they bona fide believed to' have the right to

let them into possession of the land. Such, however, is not

the case here, in view of the recitals in the ijara deed in

favour of Lakhandeo Singh and the kabuliat by Ram Lal Gope.

Sections 20 and 21 of the Bihar Tenancy Act were re-

ferred to by the learned counsel for the appellants in the

course of his arguments and he pointed out that the land in

this case was held' continuously by his clients and their

predecessors from 1908 to 1942, when they were sought to be

ejected. For these sections to apply, we must be in a

position to hold that the appellants were "settled raiy-

ats". "Raiyals" is defined in sub-clause 2 of section 5 as

meaning "primarily a person who has acquired a right to hold

land for the purpose of cultivating it by himself or by

members of his family ...... " Sub-clause 3 provides that

a person shall not be deemed to be a raiyat unless he holds

land either immediately under a proprietor or immediately

under a tenure-holder. Lakhandeo Singh was not a "proprie-

tor" by which term is meant a person owning, whether in

trust or for his own benefit, an estate or part of an es-

tate: he was only a mortgagee. Nor was he a tenure-holder

or under-tenureholder, as he does not comply with the defi-

nition given in sub-clause (1) of section 5, namely, a

person who had acquired from a proprietor or from another

tenure-holder a right to hold land for the purpose of col-

lecting rents, or for the purpose of bringing the land under

cultivation by establishing tenants on it. Such proof as

there is in this case only goes to show that the lands were

under the cultivation of the plaintiffs and that they were

made over to the possession of the mortgagee so that he

might cultivate them himself. Hence, Ram Lal Gope could not

claim that he was a settled raiyat of the village and that

under the statute he secured occupancy rights in the lands

Which he took on lease from Lakhandeo Singh.

782

Lastly, it was urged that the ijara by Mst. Anaro Kuer

was admittedly an oral transaction and there was no proof of

any prohibition against the settlement with tenants so far

as her share (3.97 acres) was concerned and that the rights

of the parties as regards this area would stand on a differ-

ent footing from the rights in respect of the 4 acres and 29

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

cents belonging to the plaintiff first party. This point

was not taken in the courts below where the two ijaras given

to Lakhandeo Singh were dealt with as if they were part and

parcel of one and the same transaction, the rights and

liabilities, whatever they were, being common to both. We

cannot allow the point to be taken now.

The result is that the High Court's decree is con-

firmed and the appeal is dismissed with costs of the plain-

tiffs respondents. There will be no order as to costs of

the other respondents.

Appeal dismissed.

Agent for the appellants: S.P. Varma.

Agent for the respondents Nos. 1 to 9: M.M. Sinha.

Agent for the respondents Nos. 11 to 16: K.L. Mehta.