1. The plaintiff, who is khot of the village of Amdoshi in taluka Mangaon of the Kolaba district, sued for a declaration that his tenants had no right to alienate land without his consent and to recover possession of the suit lands from defendants Nos. 1 to 4 with mesne profits and costs; and also for necessary correction in the record of rights.
2. Defendant No. 1 for herself and for her minor son defendant No. 2 executed a mortgage of her tenancy in favour of defendant No. 5, Defendant No. 4 was the tenant on the land. The defendants contended that they had redeemed the mortgage and therefore the plaintiff had no cause of action. The first Court, the Second Glass Subordinate Judge of Roha, decreed the plaintiff's claim, but on appeal the District Judge, Thana, reversed the decree and dismissed the plaintiff's suit. The plaintiff makes this second appeal.
3. The grounds on which the District Judge proceeded in dismissing the suit are only two. After discussion of the law on the subject he came to the conclusion that he was bound to find in the face of the numerous rulings of this Court ending with Purshottam v. Ganpati (1925) 28 Bom. L.R. 750 that an alienation by a tenant without the Idiot's consent of his khot niabat lands in the Mangaon taluka of the Kolaba district gave the khot the right of re-entry. That case also is on all fours with the present case, because in that case also the lands were under attachment, and it was held that a temporary attachment of a village by Government does note affect the rights which the khot has independantly of the right of management, such as the giving of consent to alienation of khoti nisbat lands by tenanta. The Judge, however, held that the mortgage had been redeemed and that after the redemption, which was prior to the suit, the khot would have no right of re-entry. He says :-
I am inclined to hold that a mortgage with possession though it may expose the property to a re-entry on the part of the khot while it is in the possession of the mortgagee, yet leaves open a locus panitsalia to the tenant so long as the khot has not re-entered, and if the property is actually redeemed or regained by the tenant before the khot could make his re entry, then that right is successfully frustrated.
4. It has been found by the lower appellate Court that this mortgage was redeemed in 1925 before the suit, and although it has been objected by the learned advocate for the appellant, that is a finding which is based on the evidence, but I think the finding that after that redemption the khot could have no right of reentry is wrong, as it is covered by authority in Vasu Krishna v. Madhavrao : (1922)24BOMLR1160 to which the learned Judge's attention does not seem to have been directed. In that case it was held that a simple mortgage of khoti land by its occupancy tenant amounts to a transfer of his interest in the land within the meaning of Section 10 of the Khoti Settlement Act of 1880 and that the mortgage itself gives the khot a right to claim that the land is at his disposal and the fact that the mortgage was satisfied before the date of the suit is no answer to the claim. It is true that that was a case arising in the Ratnagiri district to which the provisions of Section 10 of the Khoti Settlement Act applied, but the custom has been decided by this Court in numerous cases such as Hari v. Gangadhar (1916) 18 Bom. L.R. 446 Gopal v. Bhagirathi : AIR1918Bom152 , and Purshottan v. Ganpati (1925) 28 Bom. L.R. 750 and therefore, the mere execution of the mortgage which, as a matter of fact, in this case was a possessory mortgage and accompanied by a transfer of possession is sufficient to give the khot the right to re-enter, and that right is not affected by the fact that the redemption took place before the commencement of the suit.
5. It is urged for the appellant that in the record of rights prepared for the village the rights of permanent tenanta of khoti nisbat lands were shown to be transferable, and therefore in the face of the presumption which arises under Section 135J of the Land Revenue Code as to the correctness of the entries in the record of rights his clients were justified in thinking that they could alienate the khoti nisbat lands, and therefore no cause of action arose under the Code. The present, I think, is perhaps rather a hard case, but the entries in the record of rights were undoubtedly wrong and have since been corrected, and it has been contended by the learned advocate for the appellant that the date of the mortgage was February 19,1915, whereas the record of rights was not introduced into this village till 1915/17, i. e, after March 31, 1915. I think that is more or leas a matter of conjecture and depends on what the plaintiff said, But it is stated both by the plaintiff and referred to in the judgment of the lower appellate Court that the entries in the record of rights were corrected in or about 1924. Even if we assume that, in existence of the entry-although incorrect-in the record of rights, defendant No. 1 might have grounds for thinking that she had a right of mortgage, yet directly the entry was corrected that presumption failed and cannot be made use of as a defence against the knot's claim to re-enter.
6. The last point taken by the learned Judge is this-
I am of opinion that the circumstance that the mortgage was not by the tenant himself, but by his guardian during his minority, makes a great difference to the position. A guardian'a authoiityig limited to such transactions as are necessary or for the benefit of the minor, When a minor has an item of property which is inalienable by its nature or which cannot be mortgaged without occasioning the loss of the entire property with no commensurate gain, then, the guardian's authority in law could not extend to effecting such a mortgage. I therefore, hold that the mortagage was outside of the guardian's authority and consequently voidable at the instance of the minor.
7. Now, that is a plea which has been put forward by the defendant No. 1 as mortgagor. It has been found by the first Court that the mortgage was for necessity for paying the debts of her husband, the father of the minor, defendant No. 2, and for the maintenance of herself and her minor children, and it is contended that as she herself has executed the mortgage, she is estopped from contending that she had no power to make it. Various cases have been quoted by the learned advocate for the respondent beginning with Hanoomanpersaud Panday v. Mussumat Bubooee Munraj Koonweree (1856) 6 M.I.A. 393, as to the powers of a manager and guardian of a Hindu minor. But the present case is rather different from the ordinary case inasmuch as the minor's guardian-his mother-mortgaged for necessity, the dispute is now not between the mortgagor and mortgagee, but between the mortgagor and a third party.
8. The learned advocate for the appellant has referred to Narayan Khandu Kulkarni v. Kalgaunda Birdar PatelI.L.R. (1889) Bom. 404 in which the defendant set up a mortage of the land alleged to have been executed to the defendant by the plaintiff's mother during the minority of the plaintiff, who was a watandar who sued to recover the lands. It was held that the plaintiff was estopped from denying his title to mortgage the field, the general rule being that the grantor cannot dispute with his grantee his right to alienate the land to him, and the circumstances in the case did not justify a departure from the rule. That was a case between a grantor and a grantee and was not precisely on all fours with the present case, but in Jayram v. Narayan (1903) 5 Bom. L.R. 652 where in a suit by the mortgagee against the mortgagor of certain occupancy tenancy in a khoti village, the mortgagor contended that the mortgage was illegal under the Khoti Settlement Act, it was held that the principle of estoppel applied to the case and the mortgagor could not have questioned his own right to mortgage the property in dispute. I do not think that the mortgagor, that is defendant No. 1, can contend that she and no authority to pass this mortgage. As between the mortgagor and the mortgagee this mortgage would be binding as found by the first Court, because it was for necessary purposes, and if it is binding for one purpose it must be binding for all purposes, and because unfortunately in executing this mortgage defendant No. 1 transgressed the terms on which she held the occupancy tenancy from the khot, she cannot be heard to say that the mortgage was one which she had no power to enter into. I agree that the present is rather a hard case, more especially in view of the incorrect entries in the record of rights. But the rights of the khot in the Mangaon villages to enter, on a tenant alienating his holding whether by mortgage or otherwise, have been clearly laid down by this Court in a series of decisions, and I cannot see my way, consistently with the law, to save the defendants from the forfeiture which they have incurred.
9. The result is that the decree of the lower appellate Court must be reversed and the decree of the first Court restored with costs throughout.