Skip to content


Gafur Walad Usman Vaghu Mapari Vs. Sakharam Tanshet Narkar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberSecond Appeal No. 205 of 1937
Judge
Reported in(1939)41BOMLR1199
AppellantGafur Walad Usman Vaghu Mapari
RespondentSakharam Tanshet Narkar
Excerpt:
.....contended that as the lands were transferred by the permanent tenants without the consent of the khots the transfer was void under section 9 of the khoti settlement act (bom. i of 1880) and did not confer any interest on the plaintiffs:-;(1) that, as the defendants were in possession of the lands as mortgagees, their occupation was to be deemed the occupation of their mortgagors (permanent tenants) under the proviso to section 6 of the khoti settlement act, and the mortgagors were to be deemed the actual holders of the lands;;(2) that the mortgagors having transferred their right, title and interest to the plaintiffs, the rights which could have been claimed by the actual holders under section 6 of the act became vested in the plaintiffs who must be regarded as the actual holders of..........in favour of government. it was alleged on behalf of the plaintiffs that in the year in which the lands were transferred to them, one yakub naik was the managing knot, and that the transfer was consented to by his mukhtyar anant vinayak. both the lower courts have held that this alleged consent before the transfer is not proved, and that being a finding of fact it cannot be challenged in second appeal. but it does not follow that the transfer without the consent of the khots does not confer any interest in the khoti lands on the transferees. it is true that the khots thereby got the right to dispose of the lands as they chose, and it was open to them to evict the transferees and take possession of the lands. but till then the transferee is not a trespasser. section 6 of the act provides.....
Judgment:

Lokur, J.

1. This appeal raises an interesting question regarding the power of a transferee of a khoti land from its permanent tenant after it was mortgaged to another to redeem that mortgage.

2. The lands in dispute are non-transferable Kularag khoti holdings, and some members of the Narkar family were their permanent tenants. They mortgaged them to one Sakhubai on March 13, 1907, for a period of twenty years. Sakhubai assigned her mortgagee rights to the defendants' predecessor-in-title in 1912. The defendants are now in the actual possession of the lands as mortgagees. The plaintiff purchased the lands from the permanent tenants on April 19, 1932, and filed this suit against the defendants for the redemption of the mortgage of 1907. Defendant No. 1 contended that as the transfer of the lands by the permanent tenants was made without the consent of the khots, it was void and did not confer any interest upon the plaintiffs, that the plaintiffs not being agriculturists, they were not entitled to the benefit of the Dekkhan Agriculturists' Relief Act, and that the original owners were necessary parties to the suit. The trial Court held that the plaintiffs were not entitled to seek redemption and dismissed the suit. It recorded its findings on the other issues framed, but in appeal the learned District Judge dismissed the appeal only on the ground that the plaintiffs did not acquire any interest in the lands as the transfer was not made with the consent of the khots. It did not consider the findings recorded by the trial Court on the remaining issues. Hence, the only issue argued in this Court is whether the plaintiffs have a right to seek redemption of the mortgage from the defendants.

3. It is not disputed that the lands being khoti lands, if their transfer in favour of the plaintiffs is not proved to have been made with the consent of the khots or the managing khot, then under Section 10 of the Khoti Settlement Act (Bom. I of 1880), they shall be at the disposal of the khots as khoti lands free of all encumbrances, other than liens or charges created or existing in favour of Government. It was alleged on behalf of the plaintiffs that in the year in which the lands were transferred to them, one Yakub Naik was the managing knot, and that the transfer was consented to by his mukhtyar Anant Vinayak. Both the lower Courts have held that this alleged consent before the transfer is not proved, and that being a finding of fact it cannot be challenged in second appeal. But it does not follow that the transfer without the consent of the khots does not confer any interest in the khoti lands on the transferees. It is true that the khots thereby got the right to dispose of the lands as they chose, and it was open to them to evict the transferees and take possession of the lands. But till then the transferee is not a trespasser. Section 6 of the Act provides that when such a land has been transferred, the actual holder of the land shall be deemed to be the tenant of that land. It is held in Yesa bin Rama v. Sakharam Gopal I.L.R. (1905) 30 Bom. 290 that Section 6 applies even to future transfers. In other words, the permanent tenancy is terminated by such a transfer without the consent of the khot and the transferee should thereafter be deemed as an ordinary tenant within the meaning of Section 8 of the Act. This position is made clear in Ramkrishna v. Bapurao (1937) 40 Bom. L.R. 390. In that case the occupancy tenant of certain khoti lands sold them to the defendants without the consent of the khots in 1896. The defendants remained in possession for more than thirty years, and thereafter the heir of the occupancy tenant passed a rajinama in favour of the plaintiffs who were the khots. When those khots filed a suit to recover possession of the lands from the defendants, it was contended that the defendants had themselves become the occupancy tenants by being in possession as such for more than twelve years. It was then held that by virtue of Section 6 of the Act the defendants became by the sale in their favour the tenants of the khots, and that in the absence of any special agreement they should be deemed to have held the lands as yearly or annual tenants of the khots under Section 8 of the Act. It was further held that the khots were entitled to eject the defendants after giving them a proper notice to quit under Section 84 of the Bombay Land Revenue Code. Until the tenancy is determined by such a notice the transferee is entitled to remain in possession of the lands as a tenant. It is pointed out that Section 6 confers the position of a tenant on the transferee only if he happens to be the actual holder of the land. But in this case as the lands are in the actual occupation of the mortgagees, the plaintiffs cannot be deemed to have become ordinary tenants of the khots by the wrongful transfer of the lands by the occupancy tenants. There is apparently some force in this contention. But the proviso to Section 6 says that if the actual holder is in possession of the land as mortgagee, his occupation or cultivating shall for the purpose of that section be deemed to be the occupation or cultivating of the mortgagor. Thus for the purpose of Section 6, though the mortgagees are in actual possession, still the mortgagors should be deemed to be the actual holders, and in this case the mortgagors having transferred their right, title and interest to the plaintiffs, the plaintiffs have stepped into their shoes, and the rights which could have been claimed by the actual holders under Section 6 became vested in the plaintiffs. The plaintiffs must, therefore, be regarded as the actual holders for the purpose of Section 6, and after the transfer of the lands without the consent of the khots they must be deemed to have become ordinary tenants within the meaning of Section 8.

4. It is claimed for the plaintiffs that in this case their position is even better than that of ordinary tenants, because after the transfer the brother of plaintiff No. 1, who happened to be the managing khot in 1933, the year after the purchase, gave his consent to the transfer. The plaintiffs' attempt to have their names recorded in the Revenue Records had been rejected by the Collector. But after the consent of the managing khot was obtained in 1933, the plaintiffs were recognised by the Collector, and the lands were entered in a fresh khata in their names. Under Section 21 of the Act, the decision of the recording-officer is binding on all the parties affected thereby and is prima facie evidence of the interest which the plaintiffs claim to possess in the lands in suit. It is not necessary at this stage to consider what interest the plaintiffs have acquired in the lands by having them entered in their khata in the Revenue Records. But even without their names being thus entered in the Revenue Records, they are at least ordinary tenants of the land entitled to be in possession of them until evicted By the khots in exercise of the right conferred upon them by Section 10 of the Act.

5. The question that next arises is whether such tenants, though not in the actual possession of the lands, are entitled to redeem the mortgage. Section 91 of the Transfer of Property Act lays down:

Any person, who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same, may redeem or institute a suit for redemption of the mortgaged property.

It cannot be disputed that the plaintiffs, as the ordinary tenants of the khoti lands in suit, have some interest at least in those lands. They cannot be regarded as mere trespassers, and Section 91 enables any person who has any interest in the mortgaged lands to seek redemption of the mortgage. It is true that the plaintiffs can be evicted in any year if the khots give them a sufficient notice to quit. But in the present case the khots have not given any such notice. But, on the other hand, the managing khot has given his consent to the transfer and enabled the plaintiffs to have them recognised by the Revenue Authorities. Thus the plaintiffs have at any rate a present interest in the lands, and if they redeem the lands and take possession of them they will have the right to cultivate them until they are evicted after a due notice. In Paya Matathil Appu v. Kovamel Amina I.L.R. (1895) Mad. 151 a Verumapattom tenant in Malabar claiming under a lease from the ottidar was held entitled to redeem the prior kanom. Their Lordships observed (at p. 153) that the word 'interest' was not necessarily confined to right of ownership, but was sufficiently large to include any minor interest such as that of a tenant or a person having a charge. In Raghunandan Prasad v. Ambika Singh I.L.R. (1907) All. 679 a perpetual lessee of the mortgaged premises from the mortgagor holding under a lease granted upon payment of a premium was held entitled to redeem the mortgage. It is urged that in those cases as the leases were for a long period the lessees had real interest in the lands, and as such they had the right to redeem the mortgages and take possession of the demised lands. But the principle which applies to the long lease equally applies to a lease for a short period. In Tarn v. Turner (1888) 39 Ch. D there was a lease which could be determined by a notice at the end of seven years, and the lessee was held entitled to redeem the mortgage of the demised property by the landlord. On p. 464 Cotton L. J. observed:

.why is the tenant, who holds under an agreement such as I have mentioned not to be entitled to redeem, which is the only way of relieving himself from the effect of the mortgage.... Here is a man who has a certain interest in the equity of redemption, and he may be prejudiced by the action of the mortgagee insisting on his rights as legal owner of the property..The interest which he got from the mortgagor makes him to a certain extent an assignee of the equity of redemption, and therefore entitled to all the rights which appertain to the owner for the time being, however small his interest in the equity of redemption may be with regard to duration of time. That, as I understand, is recognised in all the cases.

At p. 468 Fry L.J. observed:

Therefore, it appears to me that according to the general law of the land a person who claims as lessee under a mortgagor after the mortgage, and has thereby derived an interest in the equity of redemption, has the right to redeem.

It is true that in Girish Chunder Dey v. Juramoni De 5 C.W.N. 83 a raiyati tenant was held not entitled to redeem a mortgage by a landlord, and in Kalu Singh v. Hansraj Upadhiya A.I.R. [1921] Oudh 270 a cultivating tenant in Oudh was similarly held not entitled to redeem a mortgage by the landlord. But the nature of those tenancies is not clear. If they were tenants at will or tenants on sufferance, then they could not be regarded as having an interest in the land. They could be evicted by the landlord at any time without any notice. A tenant on sufferance or a tenant holding over is a mere trespasser. But where a tenant has a right to be in possession of the land until the tenancy is determined by a proper and sufficient notice to quit, he must be deemed to have some interest in the land itself. It was argued that if the plaintiffs are ordinary tenants of the khots, then the khots are also necessary parties to the suit. But this question has not been considered by the lower appellate Court, and I do not express any opinion on that point.

6. I hold that the plaintiffs are entitled to redeem the mortgage. The lower appellate Court has disposed of the appeal on the preliminary issue as to whether the plaintiffs have a right to redeem and has dismissed the appeal holding that they have none. I reverse that finding and record a finding that the plaintiffs are entitled to redeem the mortgage, and remand the appeal to the lower appellate Court for further hearing and disposal in the light of this finding.

7. The respondents shall pay the costs of the appellants in this Court and bear their own.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //