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Jagdish Prasad Pande Vs. Ram Swarup - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All119; 152Ind.Cas.1015
AppellantJagdish Prasad Pande
RespondentRam Swarup
Cases ReferredMoti Chand v. Ikram Ullah Khan
Excerpt:
- - the policy of the act is not to be defeated by any ingenious devices, arrangements, or agreements between a vendor and a vendee for the relinquishment by the vendor of his 'sir' land or land which he has cultivated continuously for 12 years at the date of the transfer; the assistant collector may grant the permission asked for if he is satisfied that the applicant does not wholly or mainly depend on agriculture for his livelihood, or that the land transferred is self-acquired or has been acquired within the twenty years last preceding, or if there arc reasonable grounds for sanctioning the transaction. that amount being admittedly the consideration of the assignment is clearly recoverable by the plaintiff. 5. in my opinion the view taken by the trial court is perfectly correct......on that date the plaintiff executed another document in favour of the defendant which is a sale-deed in respect of his proprietary rights in a mahal in village pandri, district bareilly in lieu of rs. 7,500. the sale-deed provides that the vendor would relinquish his ex-proprietary rights that would accrue in 'sir' and 'khudkasht' lands on transfer of his proprietary rights. the vendor undertook to have mutation of names effected in favour of the vendee in respect of the land sold free from his own ex-proprietary rights. by the other deed the vendor assigned arrears of rent then due to him and a decree against a third person in lieu of rs. 700. the deed provided in clear terms that rs. 700 was the consideration of the assignment. there is a covenant which provides as follows:the.....
Judgment:
ORDER

Niamatullah, J.

1. These two revisions arise out of a suit brought by the plaintiff Pandit Ram Sarup for recovery of Re. 700, which the defendant agreed to pay as the price of assignment made by the plaintiff in favour of the defendant of certain decrees. The assignment is evidenced by a deed dated 6th November 1929. It is common ground that on that date the plaintiff executed another document in favour of the defendant which is a sale-deed in respect of his proprietary rights in a mahal in village Pandri, District Bareilly in lieu of Rs. 7,500. The sale-deed provides that the vendor would relinquish his ex-proprietary rights that would accrue in 'sir' and 'khudkasht' lands on transfer of his proprietary rights. The vendor undertook to have mutation of names effected in favour of the vendee in respect of the land sold free from his own ex-proprietary rights. By the other deed the vendor assigned arrears of rent then due to him and a decree against a third person in lieu of Rs. 700. The deed provided in clear terms that Rs. 700 was the consideration of the assignment. There is a covenant which provides as follows:

The consideration herein mentioned is agreed to be received by the vendor in its entirety when the 'sir' and 'khudkhast' landssituate in Qura Biran (a hamlet within the share sold) are relinquished and when the vendor's name is expunged in respect thereof. The consideration of this deed shall then be paid on written acknowledgment of receipt by the vendor.

2. The vendor did not relinquish his ex-proprietary rights in spite of the covenant contained in that behalf in the sale-deed. The vendee refused to pay the sum of Rs. 700, the consideration of the assignment of the arrears of rent and the decree already mentioned for which the plaintiff (vendor) instituted the suit which has given rise to this revision. The defendant (vendee) pleaded that the plaintiff is not entitled to receive the sum claimed as he did not relinquish his ex-proprietary lands. The lower Court held that the stipulation to relinquish ex-proprietary rights is void and the plaintiff is entitled to recover the sum claimed by him. The plaintiff's suit was decreed, but parties were directed to bear their own costs. Revision No. 19 of 1934 has been preferred by the defendant who challenges the decree in so far as the plaintiff's claim has been allowed to prevail. Revision No. 257 of 1934 has been filed by the plaintiff in so far as the decree did not award costs to him, The learned advocate for the defendant-applicant has argued that the time fixed for the payment, of Rs, 700 is the date on which, the plaintiff relinquishes his ex-proprietary tenancy. He is not entitled to recover it so long as he does not relinquish Ms. ex-proprietary lands. It is contended that the agreement to relinquish is not void as might have been the case before the present Tenancy Act, 3 of 1926, was passed, which, it is said, has introduced a change in this respect. Section 20(2) and Section 21, Tenancy Act 2 of 1901 provided that an ex-proprietary tenant was not competent to transfer his holding which was declared to be non-transferable. When that Act was in farce their Lordships of the Privy Council held in Moti Chand v. Ikram Ullah Khan 1916 P.C. 59, that:

The Policy of Act 2 of 1901 is to secure and preserve to a proprietor whose proprietary rights, in a mahal or in any portion of it are transferred otherwise than by gift or by exchange between co-sharers in the mahal, a right of occupancy in. his 'sir' lands, and in the land which he has cultivated continuously for 12 years at the date of the transfer and that such right of occupancy is by the Act secured and preserved to the proprietor, who becomes by a transfer the ex-proprietor, whether he wishes it to be secured and preserved o him or not and notwithstanding any agreement to the contrary between him and the transferee. The policy of the Act is not to be defeated by any ingenious devices, arrangements, or agreements between a vendor and a vendee for the relinquishment by the vendor of his 'sir' land or land which he has cultivated continuously for 12 years at the date of the transfer; for a reduction of purchase-money on the vendor's f tiling or refusing to relinquish such lands; or for the vendor being liable to a suit for breach of contract on his failing or refusing; to relinquish such lands. All such devices, arrangements, and agreements are in contravention of the policy of the Act and are contrary to law and are illegal and void, and cannot be enforced by the vendee in any civil Court or in any Court of Revenue.

3. It is contended that the present Tenancy Act, 3 of 1926, has introduced a change in this respect and that an agreement to relinquish an ex-proprietary tenancy is no longer void and: opposed to the provisions of the Tenancy Act, but is permissible within prescribed limits. It may be conceded that ex-proprietary tenancy can now be transferred if it is sanctioned by the Assistant Collector in the manner, provided by Section 15, but in the absence of his sanction the transaction is as void now as it was when Act 2 of 1901 was in force. Section 15(1) declares that:

Except as provided in Sub-sections (2), (3) and (4), no sale of sir or agreement, relinquishment or other transaction having the effect of a surrender or relinquishment of ex-proprietary rights executed or carried out within six months immediately preceding or succeeding a transfer of proprietary rights, shall affect or detract from the rights created by Section 14. (Under which ex-proprietary rights accrue on transfer of proprietary rights).

4. Sub-sections (2), (3) and (4) enact rule under which a tenant desiring to transfer or relinquish his ex-proprietary rights within six months preceding or succeeding the transfer of his proprietary rights is to apply to the Assistant Collector for permission to transfer or relinquish his ex-proprietary rights which are likely to accrue or have accrued on sale of his proprietary rights. The Assistant Collector may grant the permission asked for if he is satisfied that the applicant does not wholly or mainly depend on agriculture for his livelihood, or that the land transferred is self-acquired or has been acquired within the twenty years last preceding, or if there arc reasonable grounds for sanctioning the transaction. Subject to the provisions contained in Sub-sections (2), (3) and (4), an agreement to relinquish or relinquishment within six months preceding or succeeding the transfer of proprietary rights is prohibited. The validity or otherwise of such agreement or relinquishment made more than six months before or after the transfer of proprietary rights, need not be considered as the agreement in the present case is contained in the sale-deed in respect of the proprietary right itself and is said to be repeated in the contemporaneous deed of assignment in respect of arrears of rent. It is not disputed that the sanction of the Assistant Collector contemplated by Sub-rules (2) and (3) was not obtained. If follows that the circumstances in which the invalidating part of Section 15, becomes inapplicable do not exist in the present case and the agreement to relinquish is calculated to defeat the provisions of Section 15, Tenancy Act, 3 of 1926 and the policy underlying that Act. In my opinion the considerations emphasised by their Lordships of the Privy Council in the case already referred to are applicable in spite of the change introduced by Act 3 of 1926 where the sanction provided for by Sub-sections (2) and (3) has not been obtained. The covenant making the consideration of Rs. 700, payable only at the time of relinquishment and not before is void. That amount being admittedly the consideration of the assignment is clearly recoverable by the plaintiff. The time fixed for payment, may be disregarded.

5. In my opinion the view taken by the trial Court is perfectly correct. Revision No. 19 of 1934, fails and is dismissed with costs. As regards the plaintiff's revision which is in respect of costs only, I do not think that any interference is called for. Costs were in the discretion of the lower Court and in the exercise of that discretion, the lower Court was undoubtedly influenced by the fact that the plaintiff did not relinquish his ex-proprietary rights as he had agreed to do and though a rule of law favours him on grounds of public policy, he is not without moral blame in the matter. Revision No. 257 of 1934 is also dismissed with costs.


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