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Sheo Balak and ors. Vs. Syed Mojiz Abbas and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 534 of 1969
Judge
Reported inAIR1974All435
ActsUttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 - Sections 14; Uttar Pradesh Agriculturists' Relief Act, 1934 - Sections 12; Uttar Pradesh Debt Redemption Act, 1940 - Sections 9; Transfer of Property Act, 1882 - Sections 62
AppellantSheo Balak and ors.
RespondentSyed Mojiz Abbas and ors.
Appellant AdvocateG.S. Srivastava, Adv.
Respondent AdvocateS. Sharafat Ali, Adv. and ;Standing Counsel
DispositionAppeal allowed
Excerpt:
property - bhumidari rights - u.p. act, 1940 - holder executed non-self liquidating usufructuary mortgage - mortgage converted into liquidating usufructuary mortgage by passing of u.p. act13 of 1940 - application for redemption by successor of mortgagor - application decreed for redemption on payment of rupees twenty four - payment not made and payment not affected - plot sold - proceedings for consolidation commenced - transferee objected to be entered as bhumidar - benefit of section 12 of u.p. act, 1940 not available to transferee - mortgage not subsisting on date of resting - transferee not entitled to be entered as bhumidar. - - 10. the other interesting question, however, is as to the effect of the decree for redemption passed by the court in 1945 in a suit under section 12,..........on its original terms the mortgage was not a self-liquidating one and since by 1940 when the u. p. debt redemption act came into force, the limitation for its redemption had not expired, the provisions of the debt redemption act became applicable to the mortgage. under this act the original usufructuary mortgage acquired the status of a self-liquidating mortgage. in the case of a self-liquidating mortgage the period of limitation for a suit for possession accrues after the mortgage money had been paid up. as was evidenced by the decree passed in the suit under section 12, agriculturists' relief act, the mortgage money had not been fully paid up by 1945 when the suit was decreed because the suit for redemption was decreed on payment of rs. 24 in respect of half share. therefore, it could.....
Judgment:

Satish Chandra, J.

1. Munawwar Ali the sir-holder of plot No. 388 executed a usufructuary mortgage thereof on 31st July, 1884, in favour of Smt. Mona the predecessor-in-interest of the appellants before us. In 1944 the successors cf the original mortgagor instituted an application under Section 12 of the Agriculturists' Relief Act against sons of Ram Narain who represented a half share in the mortgagee's interest. Malik the present appellant No. 4 was not impleaded as a party with the result that a half share in the mortgaged property was unrepresented in the suit. The suit was decreed on 1-2-1945 for redemption of half share of the mortgaged property on payment of Rs. 24 within six months. The plaintiff-mortgagors did not, however, pay this amount.

2. On 26th November, 1947, the 'mortgagors executed a deed of gift of a share of the plot in dispute in favour of Aley Hasan the father of respondent No. 1. A few days later, on 2nd December, 1947, the mortgagors executed a sale deed in favour of Aley Hasan for the balance share in the mortgaged plot in dispute.

3. In 1951 Aley Hasan instituted a suit for redemption and possession of this plot. The suit was decreed by the trial Court but was dismissed on appeal. Aley Hasan instituted second appeal in the High Court. During the pendency of the second appeal consolidation proceedings commenced. By that time Aley Hasan appears to have died. His son the present respondent No. 1, filed an objection claiming to be recorded as bhumidhar of the plot because according to him the mortgage subsisted till the date of vesting. As a result of Section 14 of the U. P. Zamindari Abolition Act the mortgagee's right to retain possession was extinguished. The plot being the mortgagor's sir at the time of the execution of the mortgage, it retained its character as sir in view of Section 14 of the Act and so the mortgagors were entitled to be recorded as bhumidhar. This objection again had a chequered career before the consolidation authorities. The Deputy Director held that the limitation for a suit for redemption of a usufrutuary mortgage is 60 years. Since the mortgage in question did not provide any particular period of time for redemption, the limitation commenced to run on the date of the execution of the mortgage. The right to redeem was extinguished after the expiry of 60 years somewhere in 1944. After the expiry of the limitation period the representative-in-interest of the mortgagor had no title or interest left in the property. On the date of vesting there was no relationship of mortgagor and mortgagee between the parties. The obiector could not claim to have become the bhumidhar. On this view the objection was ultimately dismissed.

4. Aggrieved, Moiiz Abbas filed a writ petition in this Court. A learned single Judge held that on its original terms the mortgage was not a self-liquidating one and since by 1940 when the U. P. Debt Redemption Act came into force, the limitation for its redemption had not expired, the provisions of the Debt Redemption Act became applicable to the mortgage. Under this Act the original usufructuary mortgage acquired the status of a self-liquidating mortgage. In the case of a self-liquidating mortgage the period of limitation for a suit for possession accrues after the mortgage money had been paid up. As was evidenced by the decree passed in the suit under Section 12, Agriculturists' Relief Act, the mortgage money had not been fully paid up by 1945 when the suit was decreed because the suit for redemption was decreed on payment of Rs. 24 in respect of half share. Therefore, it could not be said that the right to sue for possession accrued to the mortgagor even till 1945. Since he has a 60 years period of limitation for suing for possession, the right to possession remained intact on the date of vesting on 1st July. 1952. Since the mortgage was subsisting, Section 14 of the Zamindari Abolition Act would apply and the right of the mortgage extinguished. The plot being sir, the representatives-in-interest of the mortgagor were entitled to be recorded as bhumidhars. On this view the order of the Deputy Director was quashed and that of the Settlement Officer was restored. Aggrieved, the erstwhile mortgagors (sic) have come up in appeal.

5. Two principal points require consideration, firstly, the effect of the Debt Redemption Act upon the rights of the parties and, in the next place, the effect of the decree for redemption passed under Section 12, Agriculturists' Relief Act. 1945.

6. In Sita Ram Singh v. Gaya Prasad (AIR 1953 All 620). A Division Bench of this Court held :

'The law on the subject is clear. Under Art. 148, Limitation Act the period of sixty years is provided both for the redemption of a mortgage and for recovery of possession of a mortgaged property. The period of limitation in the first case begins from the time when the right to redeem accrues and in the second case begins when the right to recover possession arises. Unless there is a term in the mortgage that it could not be redeemed for a certain period, the right to redeem accrues on the execution of the mortgage. After 60 years of the execution of the mortgage or after the expiry of the term when the right to redeem accrues, the right to redeem is barred. But in certain cases the right to recover possession of the mortgaged property may accrue later for instance in a self-liquidating mortgage the right to recover possession of the property accrues when the mortgage money has been fully liquidated. On the satisfaction of the mortgage money, therefore, a fresh cause of action for the recovery of the mortgaged property without redemption accrues to the mortgagor. These two different cases, namely the right to redeem and the right to recover possession are separately dealt with in the Transfer of Property Act. Section 60 deals with the right to redeem and Section 62 deals with the right to recover possession. Though a mortgage may not be a self-liquidating mortgage in the first instance, it may become a self-liquidating mortgage at a later stage, e.g., by virtue of a statutory provision. The Debt Redemption Act in reducing the rate of interest and in providing that the usufruct shall be calculated and its excess over the interest will be taken in satisfaction of the principal amount has in a way effected a revolutionary change in the terms of all subsisting usufructuary mortgages. In a sense they may be said to have become self-liquidating mortgages. But the mortgages must be subsisting on the date on which the Debt Redemption Act came into force. If the right to redeem the mortgages had already expired before the Act came into force, there is nothing on which the Act will operate.'

It will be seen that under the Transfer of Property Act read with the Limitation Act the right to redeem and the right of a suit for possession of mortgaged property are extinguished on the expiry of 60 years from the date of execution of the mortgage, in cases of a usufructuary mortgage where no fixed period is provided for redemption. The provisions of the Debt Redemption Act make a departure and prevent this consequence from arising in the cases where its provisions are applicable, for instance in a case where a mortgage was executed more than 60 years prior to the coming into force of the Debt Redemption Act, the nature of the rights flowing from it under the ordinary Law will not change merely because of the coming into force of the Debt Redemption Act because the provisions of the Debt Redemption Act are not applicable to a suit for redemption in which the period of limitation under Article 148, Limitation Act, has already expired. In other words, if the right to redeem has already expired, there is nothing on which the Act can operate.

7. Under its provisions the Debt Redemption Act does not apply to transfers of an agriculturist mortgagor. Since the transferee is not in a position to take benefit of any of the provisions of the Debt Redemption Act the consequence of a usufructuary mortgage in a way 'or in a sense' becoming a self-liquidating mortgage will not accrue to the benefit of the transferee. The legal effect of a usufructuary mortgage becoming a self-liquidating mortgage arises by virtue of the applicability of the provisions of the Debt Redemption Act. An agriculturist debtor alone is entitled to those benefits and so the change in the nature of the mortgage comes about only in the cases of agriculturist debtors. Once an agriculturist debtor has transferred the equity of redemption, the provisions of the Debt Redemption Act immediately become inapplicable. The only possible consequence of such a transfer is as if the provisions of the Act were not applicable first as in the case where the 60 years period having already expired prior to the coming into force of the Debt Redemption Act.

8. If a transferee from an agriculturist mortgagor wishes to claim possession or claim rights in such mortgaged property, he will have to stand under the ordinary law. He is not entitled to the benefits of the Debt Redemption Act. He, therefore, cannot claim that after the transfer in his favour the mortgage retained the change in its character, namely, the change of its becoming in a way a self-liquidating mortgage. The Debt Redemption Act does not statutorily always for every one's benefit convert the nature or character of a mortgage. It provides for relief in a suit filed by an agriculturist mortgagor, for redemption of the mortgage or recovery of possession of the mortgaged property. A transferee is not in the same position as the original agriculturist mortgagor.

9. In so far as the objector respondent is concerned, he cannot any that the mortgage was a self-liquidating mortgage and continued to be so till the date of vesting. The mortgage being of 1884, the right to redeem or to recovery of possession was extinguished in 1944. The transferee cannot say that the mortgage was subsisting on the date of vesting.

10. The other interesting question, however, is as to the effect of the decree for redemption passed by the Court in 1945 in a suit under Section 12, Agriculturists Relief Act. That suit was instituted by the representatives of the original agriculturist mortgagors. The suit was decreed for redemption of a half share on payment of Rs. 24. The benefit of that decree cannot accrue in favour of a transferee to whom in view of the statutory provisions the benefit of the Debt Redemption Act is not extended. From the point of view of taking benefit of that decree the transferee could not be deemed to be the representative-in-interest of the plaintiff of that suit. Such a transferee cannot bind down the defendants to that suit by the decree. The position is akin to one where by reason of a statutory change of law the rights of the parties change. In such an event it is well settled that the decree of a Court no longer operates as res judicata, the reason being that the law has meanwhile changed to affect the rights of the parties. It may here be noticed that the decree for redemption passed under Section 12, Agriculturists' Relief Act, did not fructify because the direction for payment of Rs. 24 for a half share of the property was not carried out by the decree-holder. Finally the benefit of the decrees does not appear to have been transferred. It cannot hence be said that the mortgage stood redeemed or that the right to recover possession still subsisted in favour of the transferee.

11. In the result the appeal succeeds and is allowed. The judgment of the learned single Judge is set aside and the writ petition is dismissed with costs.


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