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Kanji Kurji Vs. Kala Gopal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 289 of 1957
Judge
Reported in(1957)59BOMLR846
AppellantKanji Kurji
RespondentKala Gopal
DispositionPetition dismissed
Excerpt:
.....acquire status of deemed or statutory tenant.;the words 'a mortgagee in possession' in section 4(c) of the bombay tenancy and agricultural lands act, 1948, include within its scope all persons who derive title under a mortgagee in possession, and, therefore, a tenant from a mortgagee in possession, who derives title through him, cannot acquiro the status of a deemed tenant or a statutory tenant under the act.;dinkar bhagwant v. bau babaji (1956) 59 bom. l.r. 101 and jasvantrai tricumlal v. bai jivi (1956) 59 bom. l.r. 168, f.b. referred to. - - in our opinion, the argument is well-founded, the effect of section 59-a of the transfer of property act is to define the words 'mortgagor 'and 'mortgagee 'as including within their scope persons deriving title from them respectively......under the act of 1939, initially there was no provision with regard to what may be called ' deemed tenants,' that is, persons who were not actually contractual tenants, but who, being in lawful cultivation of land, were deemed to be tenants. but the act was amended by act no. xxvi of 1946 and section 2-a was incorporated and that section inter alia provided that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant subject to certain exceptions, with which for the moment we are not concerned. then the act of 1939 in section 3 provided that a tenant shall be deemed to be a protected tenant in certain cases, such tenant of course including the deemed tenant under section 2-a, section 3-a provided that on expiry of one year from the coming.....
Judgment:

Tendolkar, J.

1. Respondents Nos. 1 and 2 applied to the Collector of Amreli under Section 84 of the Tenuncy Act of 1948 for eviction of the applicant from Survey Nos. 274 and 288 of village Chakargad. They claimed to be the heirs of the mortgagor of these lands who had redeemed the lands from the mortgagee-one Tryambak Purshottam-on October 10, 1954. The petitioner before us was a tenant of the mortgagee, and the case of the first two respondents before the Collector was that he had ceased to be a tenant upon redemption of the mortgage and had become a trespasser and was, therefore, liable to be evicted summarily under Section 84. The Collector held that the petitioner was a trespasser after redemption of the mortgage and, therefore, granted summary eviction. There was a revision application by the petitioner to the Bombay Revenue Tribunal, and the only question that the Revenue Tribunal considered and decided was whether the petitioner continued to be a tenant after the redemption of the mortgage. The Tribunal came to the conclusion that he did not continue to be a tenant and, therefore, upheld the order of the Collector of Amreli. It is against this decision of the Revenue Tribunal that the present petition has been presented, and it is urged by Mr. Shah on behalf of the petitioner that there is an error apparent on the face of the record in that the Revenue Tribunal has wrongly come to the conclusion contrary to a Full Bench decision of this Court that the petitioner ceased to be a tenant upon redemption of the mortgage.

2. Now, in the first instance, it is necessary to state some history of the Tenancy Act that is relevant. Under the Act of 1939, initially there was no provision with regard to what may be called ' deemed tenants,' that is, persons who were not actually contractual tenants, but who, being in lawful cultivation of land, were deemed to be tenants. But the Act was amended by Act No. XXVI of 1946 and Section 2-A was incorporated and that section inter alia provided that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant subject to certain exceptions, with which for the moment we are not concerned. Then the Act of 1939 in Section 3 provided that a tenant shall be deemed to be a protected tenant in certain cases, such tenant of course including the deemed tenant under Section 2-A, Section 3-A provided that on expiry of one year from the coming into effect of Act No. XXVI of 1946 every tenant shall be deemed to be a protected tenant unless his landlord, within the said period, made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the tenant is not a protected tenant; and Section 4 dealt with tenants evicted after April 1, 1937, and sought to confer upon them the status of protected tenants subject to the provisions of that section. The Bombay Tenancy and Agricultural Lands Act, 1948, by the schedule thereto, repealed the Act of 1939, but saved Sections 3, 3-A and 4 of the Act of 1939 as modified in the manner indicated in that schedule. Amongst the repealed sections was Section 2-A, but in the new Act a corresponding section was enacted, which is Section 4, which provided that persons in lawful cultivation of the land shall be deemed to be tenants as Section 2-A of the Act of 1939 had done, but also incorporated certain exceptions to this rule, and the exception with which we shall be concerned in this case is exception (c), which provides that if such a person is a mortgagee in possession, he shall not be deemed to be a tenant.

3. We are dealing with a case where the land is situated in the former territory of Baroda. The Act of 1939 was never made applicable to the Baroda State; but after the merger of the State into British India, the Bombay Merged States (Laws) Act, 1950, made certain Bombay Acts applicable to the merged areas. By Section 3, Sub-section (2), the Acts specified in the first column of the Third Schedule were made applicable with the amendments shown in the third column to that schedule. Amongst the Acts is the Bombay Tenancy and Agricultural Lands Act, 1948, and in col. 3 the amendments made are to the schedule of the Act of 1948 and they are in relation to Sections 3-A and 4 of the Bombay Tenancy Act of 1939 which had still been kept alive by the Act of 1948. We have, therefore, got to decide this matter in accordance with the provisions of the Act of 1948, which of course includes, by virtue of the schedule, Sections 3, 3-A and 4 of the Act of 1939 which have been kept alive and made applicable, with amendments which arc not material, to the Baroda State.

4. Now, the question as to whether a tenant of a mortgagee ceases to be a tenant upon the redemption of the mortgage or becomes a deemed tenant or statutory tenant under Section 2-A of the Act of 1939 came to be considered by a Division Bench of this Court in Dinkar Bhagwant v. Rau Babaji (1956) 59 Bom. L.R. 101. where the Division Bench took the view that the tenancy came to an end upon the redemption of the mortgage by virtue of Section III, Sub-section (c), of the Transfer of Property Act. This decision came to be considered by a Full Bench in a slightly different context in Jasvantrai Tricumlal v. Bai Jivi (1956) 59 Bom. L.R. 168, F.B. The question before the Full Bench actually was whether sub-tenants of a tenant, to whom the land was let out when sub-tenancies were legal, could be said to be lawfully cultivating the land after the termination of the contractual tenancy of the tenant himself, and the Full Bench held that upon the termination of the contractual tenancy the sub-tenant became a statutory tenant of the landlord. In delivering judgment, the learned Chief Justice referred to the decision of the Division Bench to which we have earlier referred, and to the extent to which that decision held that a tenant of a mortgagee ceases to be a tenant upon redemption of the mortgage, the learned Chief Justice held that the Division Bench had corne to a wrong conclusion. The learned Chief Justice observed (p. 175) :.Therefore, with very great respect, we must hold that the view taken by the learned Judge with regard to the position of the tenants of the mortgagees in possession under the old Act of J 939 is not the correct position, and that as far as the old Act is concerned the position of the tenants of the mortgagees in possession and the position of sub-tenants was identical ; they both became statutory tenants, one on the redemption of the mortgage and the other on the termination of the contractual tenancy.

Therefore, the question is now concluded by the Full Bench decision that under the Act of 1939 a tenant of a mortgagee does not cease to be a tenant upon redemption of the mortgage, but becomes a statutory tenant after such redemption under Section 2-A of the Act of 1939. But the Tribunal took the view-and that is the view which is contested before us-that this decision has no bearing on the position as it exists under the Act of 1948 because the Tribunal held that under Section 4(c) of the Act of 1948 any person lawfully cultivating the land, who derives title through a mortgagee in possession, does not become a deemed tenant or a statutory tenant.

5. Now, Mr. Shah, in the first instance, has submitted that when the Act of 1948 was made applicable to the Baroda State, he was a tenant under the 1939 Act and therefore the decision of the Full Bench directly applies to his case. That undoubtedly would have been true if the Act of 1939 was ever made applicable to the Baroda State. The provision of that Act under which the Full Bench held that a tenant of a mortgagee upon redemption becomes a deemed tenant or a statutory tenant was contained in Section 2-A of that Act, which section was never made applicable to the Baroda State ass it is not amongst the three sections of the Act of 1989, namely, Sections 3, 3-A and 4, which were preserved by the schedule to the Tenancy Act of 1948 in an amended form in the Baroda State. This argument, therefore, cannot be upheld.

6. Mr. Shah next contends that assuming that the Act of 1948 applies, under Section 4 his client was admittedly a person lawfully cultivating land belonging to another and he must be deemed to be a tenant. He submits that his client is not taken out of the provisions of this section by reason of Sub-clauses (c) because he was not a mortgagee in possession, and the exceptions to Section 4 must be read strictly and the words ' a mortgagee in possession 'must not be interpreted to include within their scope persons who derive title from a mortgagee in possession. Now, in the first instance, Section 4 enacts a beneficent piece of legislation intended to confer benefits on persons in lawful cultivation of lands by conferring upon them the status of a tenant. Any exceptions to such a beneficent piece of legislation must no doubt be strictly construed and we must not take out of the scope of that section anything more than the words of the exception strictly warrant. But the question is whether the words 'a mortgagee in possession,' which appear in Sub-clauses (c) of Section 4, mean or do not mean not only a mortgagee in possession, but also persons deriving title through a mortgagee in possession. Mr. Shastri has drawn our attention to Section 2. Sub-section (21), of the Tenancy Act of 1948 which provides that words and expressions used in the Tenancy Act, but not defined therein, shall have the meaning assigned to them in the Transfer of Property Act, 1882. He then says that the words ' mortgagee in possession ' are not defined in the Act, but Section 59-A of the Transfer of Property Act defines them. That section is as follows :....

Unless otherwise oxpressly provided, reference in this Chapter to mortgagors and mortgagees shall be deemed toinclude references to persons deriving title from them respectively.

Now, Section 59 appears in Chapter IV of the Transfer of Property Act which deals with mortgages. There is no other chapter in the Transfer of Property Act which deals with mortgages or seeks to define or limit the meaning of the words ' mortgagors and mortgagees.' Therefore, Mr. Shastri argues that the meaning assigned to the expression ' mortgagee ' in Section 59-A should be the meaning assigned to the word 'mortgagee' in the phrase ' mortgagee in possession ' in Section 4 of the Tenancy Act. In our opinion, the argument is well-founded, The effect of Section 59-A of the Transfer of Property Act is to define the words ' mortgagor ' and ' mortgagee ' as including within their scope persons deriving title from them respectively. That is, therefore, the meaning assigned to them in the Transfer of Property Act, 1882, where the words 'mortgagors' and 'mortgagees' appear in Chapter IV only and the meaning is assigned for the purpose of Chapter IV. Therefore, if the same meaning is to be applied, to the words ' mortgagee in possession ' in Section 4 of the Tenancy Act, obviously 'mortgagee' must include any person deriving title from the mortgagee ; and it appears to us to be obvious that a tenant from a mortgagee derives title from the mortgagee. Although Mr. Shah disputes that his client derives title from his mortgagee, he has not been able to tell, us from whom he derives his title. This view of the words ' mortgagee in possession ' was also the view which was taken by the Division Bench of this Court in Dinkar Bhagwant v. Rau Babaji to which we have already referred. Mr. Justice Bavdekar, in delivering judgment, observes (p. 110) :.That section (Section 4(c)) excludes from the category of persons who are to be deemed as tenants a mortgagee in possession. This must necessarily exclude persons claiming through themortgagee.... It seams to us that at any rate under Section 1 of the 1948 Act the word 'mortgagee in possession ' means everyone claiming through him.

This view the learned Judge used for the purpose of finding support to the interpretation that the Division Bench placed on Section 2-A of the Act of 1939 and thereby narrowed down the scope of Section 2-A of the Act of 1939 without there being in Section 2-A any exception corresponding to Section 4(c). The Full Bench considered that it was not right to cut down the scope of Section 2-A of the Act of 1939 by reason of the provisions of Section 4(e) of the Act of 1948. The Full Bench, in dealing with this aspect of the decision of the Division Bench, pointed out that the provisions of Section 4(e) rather supported the view that the Full Bench took of the scope of Section 2-A of the 1939 Act, and that the Legislature having realised that Section 2-A may include within its scope a mortgagee in possession, a specific exception was made by Section 4(e). The learned Chief Justice also points out in reference to the Division Bench's judgment (p. 175):.The learned Judge relies on this fact for strengthening his view that mortgagees in possession were never intended to be treated as statutory tenants, and if the tenants of mortgagees in possession were not intended to be treated as statutory tenants, then on a parity of roasoning sub-tenants could not also be considered as statutory tenants.

There is nothing in the decision of the Full Bench to indicate that on the interpretation of the expression ' mortgagee in possession ' in Section 4(c) the view taken by the Division Bench was wrong. Indeed, accepting the view as correct, the Full Bench came to the conclusion that it did not help them to come to a view of Section 2-A which the Division Bench had taken. In our opinion, therefore, the Full Bench decision does not cover the case before us at all. It in terms dealt with the position of a tenant from a mortgagee under the Act of 1939 and did so on an interpretation of the unqualified words of Section 2-A of the Act of 1939. We are dealing with a case under the Act of 1948 where the provisions of the old Section 2-A of the Act of 1939 have been rendered subject to three exceptions one of which is exception (c) to which we have already referred. It appears to us to be clear that that exception includes within its scope all persons who derive title under a mortgagee in possession and, therefore, a tenant from a mortgagee in possession, who obviously derives title through him, cannot acquire the status of a deemed tenant or a statutory tenant under the Act of 1948.

7. The Tribunal, therefore, in our opinion, came to the correct conclusion, and as the petitioner before us had ceased to be a tenant upon the redemption of the mortgage, the order under Section 84 was rightly made by the Collector.

8. Mr. Shah attempted to argue before us that his client would in any event be protected under Section 5 of the Tenancy Act. Whatever merits there may be in this contention, this question was never raised or argued either before the Collector or before the Tribunal. In exercise of our writ jurisdiction we are merely concerned with finding out whether there is an error apparent on the face of the record, and we have, therefore, not allowed Mr. Shah to argue an entirely new point which was never canvassed before the Tribunal, which had not been dealt with by them and in respect of which it cannot be said that there is an error apparent on the face of the record.

9. The result, therefore, is that the petition fails and must be dismissed and the rule discharged. No order as to costs.


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