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Dhurub Deo Mal and ors. Vs. Jai Mangal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Case NumberSecond Appeal No. 1338 of 1946
Judge
Reported inAIR1950All305
ActsDebt Law; Uttar Pradesh Regulation of Agricultural Credit Act, 1940 - Sections 24
AppellantDhurub Deo Mal and ors.
RespondentJai Mangal
Advocates:Kedar Nath Sinha, Adv.
DispositionAppeal dismissed
Excerpt:
- - a further plea raised by the plaintiff was that the sale, in any case, was bad, as no permission for it had been obtained by gaya ram under the provisions of the regulation of agricultural credit act, act xiv [14] of 1940, and that the sale-deed was, therefore, at the worst to be considered as a self-liquidating mortgage-deed for 20 years......p. regulation of agricultural credit act of 1940 for making the gift, can, instead of making the gift, make a sale, or, to put it in more general words, whether a proprietor who obtains permission for making one kind of permanent alienation can make another kind of such alienation. as already stated in the judgment of my learned brother, the permission obtained from the assistant collector, in charge of the sub-division, was for making a gift. learned counsel for the appellants has urged that the object of the u. p. regulation of agricultural credit act was to protect agriculturists from themselves and to save for them sufficient land for their livelihood and that being so, if permission has been granted for gift, it should be interpreted to contain in itself a permission for sale.....
Judgment:

Bind Basni Prasad, J.

1. I agree with my learned colleague and desire to add a few words.

2. The specific question for decision before us is whether a proprietor, who has obtained a permission under Section 24, U. P. Regulation of Agricultural Credit Act of 1940 for making the gift, can, instead of making the gift, make a sale, or, to put it in more general words, whether a proprietor who obtains permission for making one kind of permanent alienation can make another kind of such alienation. As already stated in the judgment of my learned brother, the permission obtained from the Assistant Collector, in charge of the sub-division, was for making a gift. Learned counsel for the appellants has urged that the object of the U. P. Regulation of Agricultural Credit Act was to protect agriculturists from themselves and to save for them sufficient land for their livelihood and that being so, if permission has been granted for gift, it should be interpreted to contain in itself a permission for sale also, because by sale the alienor is able to receive some consideration, whereas by gift he receives no such consideration.

3. The expression 'permanent alienation' has been defined in Sub-section (9) of Section 2 of the Act and it means only three kinds of transfers, namely, sale, exchange or gift, but does not include a transfer by gift for a charitable purpose or a transfer by will. The rules framed by the Provincial Government in accordance with Sections 24 and 35 indicate that the Assistant Collector has to apply his mind to the nature of the transfer. It is clear on a perusal of those rules that it is on a consideration of the totality of the circumstances of the case that he has to grant or refuse the permission. Suppose a proprietor wants to make a gift of his land to a close relation of his, a son or a daughter, and on this representation the Assistant Collector grants the permission thinking that, as the property is going to remain in the family and is not passing to a non-agriculturist, the permission should be granted. Having obtained the permission from the Assistant Collector on such a representation, I do not think it is open to the proprietor to make a sale of the property to a stranger instead of making the gift as proposed by him before the Assistant Collector. Sale of property, no doubt, would bring consideration to the proprietor, but he may squander away the money so received. If the Assistant Collector had been informed that the proprietor was to sell the property to a stranger, he may not have granted the permission,

4. The rules further require that the proprietor has to specify before the Assistant Collector the nature of the transfer which he proposes to make. It is the specific type of alienation for which permission has been granted which can be made by the proprietor. It is not open to him to transfer the property in any manner other than that for which permission has been accorded to him.

5. If the argument of the learned counsel for the appellants is pushed to its logical ends, then it would mean that a proprietor who has obtained a permission for sale can make a mortgage of it. Learned counsel admits that a person who has obtained permission for making a permanent alienation cannot make a temporary alienation. If that is so, then a proprietor who has obtained permission for sale cannot mortgage it. It is desirable that a proprietor should place before the Assistant Collector the true kind of permanent alienation which he proposes to make and all its circumstances. The Civil Court can uphold only such specific type of transfers for which permission has been granted by the Assistant Collector. It is not open to the Civil Court to substitute for one kind of transfer another kind for which no permission has been specifically obtained from the Assistant Collector.

6. Learned counsel for the appellants has relied upon the case of Manphool Singh v. Ram Bilas : AIR1948All99 . It appears that in that case permission was obtained from the Assistant Collector for the sale of the property, but the proprietor made an exchange of it. It was held that if a permission for sale was obtained, the proprietor could make an exchange of it. For the reasons given above, with great respect, I differ from the view taken in that case.

Agarwala, J.

7. This is a defendants' appeal arising out of a suit for possession or in the alternative for pre-emption. The facts may be shortly stated as follows :

8. Gaya Ram and Jaimangal, two brothers, were members of a joint Hindu family. Gaya Ram executed a sale-deed in favour of defendants 2 to 4 who are appellants in this appeal before us in respect of certain protected land on 4th October 1943. Jaimangal plaintiff-respondent instituted the suit, which has given rise to this appeal, claiming possession over this property on the ground that his brother was not entitled to sell it without any legal necessity, the property being the property of a joint Hindu family, In the alternative he claimed the property by right of pre-emption. A further plea raised by the plaintiff was that the sale, in any case, was bad, as no permission for it had been obtained by Gaya Ram under the provisions of the Regulation of Agricultural Credit Act, Act XIV [14] of 1940, and that the sale-deed was, therefore, at the worst to be considered as a self-liquidating mortgage-deed for 20 years.

9. The defence of the vendees, appellants, was that the sale was for legal necessity, that permission had been obtained and that the plaintiff was not entitled to pre-emption. The relief for pre-emption or for sale being without legal necessity seems to have been given up and the parties confined themselves to the question whether a valid permission for execution of the sale-deed had been obtained. The trial Court held that permission for making a gift of the property had been obtained and that that permission was enough to cover the transaction of sale and that as such, the plaintiff had no cause of action for the suit. In the result, the suit was dismissed. On appeal, the lower appellate Court was of opinion that permission for making a gift did not validate a sale under Section 24 of the aforementioned Act and the rules framed under it. The appeal was, therefore, allowed and the suit was decreed for a declaration that the disputed transfer would be effective for 20 years as a mortgage. Against this decree the vendee defendants have come up in second appeal to this Court.

10. This appeal was at first heard by one of us who, having regard to the view expressed by a Judge of this Court in Manphool Singh v. Ram Bilas : AIR1948All99 referred the case for decision by a Bench. The case is now before us and we have heard learned counsel in support of the appeal. I have come to the conclusion that the view taken by the lower appellate Court is the right view.

11. Chapter IV of Act XIV [14] of 1940 deals with 'voluntary alienation of protected land'. Section 12, provides,

'No proprietor shall mortgage or lease or make a permanent alienation of the whole or any part of his protected land or alienate or charge the produce of such land otherwise than in accordance with the provisions of this Act.'

12. Section 2 (9) defines 'permanent alienation' as meaning;

'A transfer by sale, exchange, or gift but does not include a transfer by gift for charitable purposes or a transfer by will.' Section 24 lays down:

'A proprietor who wishes to make a permanent alienation of the whole or any part of his protected land shall apply for permission to the Assistant Collector in charge of the sub-division in which his protected land or that part of it which is assessed to the largest amount of local rate is situated.'

Sub-section (2) says :

'The Assistant Collector shall make such enquiry as appears necessary and shall decide the application in accordance with rules made by the Provincial Government in this behalf.'

Sub-section (2) of Section 24, requires the Assistant Collector to decide the application for permission to transfer in accordance with the rules made by the Provincial Government. Section 35 of the Act authorises the Provincial Government to make rules consistent with the Act for carrying out the purposes of this Act. In exercise of the power so conferred on the Provincial Government, certain rules have been framed by it. These rules provide for an application to be made under Section 24 for permission to make a permanent alienation of protected land. This application is required to be in form D attached to the rules. The application is to be verified as a plaint. Form D prescribes that the applicant shall state whether the land sought to be alienated is the applicant's protected land and whether he desires to make a permanent alienation of it by way of sale, exchange or gift. The Assistant Collector has then to make an enquiry whether, in the circumstances of the case, and in the light of rule 18, the application, for the particular alienation specified in form D should or should not be granted.

13. It is abvious that the reasons which may weigh with the Assistant Collector in granting an application for sale may be quite different from the reasons which may weigh with him in permitting a gift or an exchange. The circumstances of the three kinds of permanent alienation are not always identical and may indeed be so different that an Assistant Collector may be prepared to sanction one kind of alienation and refuse an alienation of another kind. It is not for the civil Court to decide whether the Assistant Collector refused or granted an application rightly or wrongly. A civil Court has therefore, to go by the order that the Assistant Collector has passed. If the Assistant Collector has permitted a particular kind of alienation, his permission refers only to that kind of alienation and not to any other kind.

14. In the present cage, it appears that Gaya Ram represented to the Assistant Collector that he intended to make a gift of the property to his near relation. Instead of making a gift, he made a sale of the property to some strangers. I cannot therefore assume that the Assistant Collector intended by his order permitting a gift that a sale may also be made. I think that the permission obtained by Gaya Ram in the present case did not apply to the sale in question and that the sale-deed could .not operate as such.

15. I would, therefore, dismiss this appeal, but would make no order as to costs.

16. The appeal is dismissed. No order as to costs.


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