Skip to content


Badri Mallah and anr. Vs. Sudama Mal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in16Ind.Cas.981
AppellantBadri Mallah and anr.
RespondentSudama Mal and ors.
Cases ReferredIn Ram Sarup v. Kishan Lal
Excerpt:
agra tenancy act (ii 1901), sections 20, 31 - mortgage of occupancy holding in favour of landlord--illegal and void. - - it is well known that the provisions of section 9 of the old rent act of 1881 and of section 20 of the present act were enacted in the interest as much of the tenant as of the landholder......of the mortgagee. it was fouud by the first court that the trees mortgaged stood on what is the occupancy holding of the mortgagor. the munsif dismissed the suit, holding that a simple mortgage of an occupancy holding is void. on appeal, the district judge held that the mortgage was valid because it was made in favour of the mortgagor's landlord. he seems to have been led to this conclusion by section 31 of the tenancy act. it has been observed, more than once, that this section is not happily worded. in ram sarup v. kishan lal 29 a. 327 : a.w.n. (1907) 76 : 4 a.l.j. 306 it was held that the word 'voidable' in this section is used not in the sense in which that term is ordinarily used, and that the section was not intended to show that a transfer contrary to the provisions of section.....
Judgment:

Chamier, J.

1. This was a suit upon a mortgage of a grove. The mortgagor is a tenant of the mortgagee. It was fouud by the first Court that the trees mortgaged stood on what is the occupancy holding of the mortgagor. The Munsif dismissed the suit, holding that a simple mortgage of an occupancy holding is void. On appeal, the District Judge held that the mortgage was valid because it was made in favour of the mortgagor's landlord. He seems to have been led to this conclusion by Section 31 of the Tenancy Act. It has been observed, more than once, that this section is not happily worded. In Ram Sarup v. Kishan Lal 29 A. 327 : A.W.N. (1907) 76 : 4 A.L.J. 306 it was held that the word 'voidable' in this section is used not in the sense in which that term is ordinarily used, and that the section was not intended to show that a transfer contrary to the provisions of Section 20 was voidable only and not void, but was intended to give a special remedy to the landholder. It seems to me that the section was not intended to affect the express provisions of Section 20 of the Act that the interest of an occupancy tenant is not transferable except as between certain persons. It is well known that the provisions of Section 9 of the old Rent Act of 1881 and of Section 20 of the present Act were enacted in the interest as much of the tenant as of the landholder. I am unable to hold that an occupancy-tenant may transfer his interest to his landlord otherwise than in the manner provided in the Act, namely, by relinquishment of the holding. It cannot be suggested that the transaction in the present case amounts to a relinquishment of the holding. I have no hesitation in holding that a simple mortgage by an occupancy-tenant of his interest in his holding in favour of his landlord is void, whether made before or after the Tenancy Act. Under the old Act, it was held that an occupancy tenant might make a usufructuary mortgage of his holding. That is forbidden by the new Act. Before this appeal can be disposed of, I must have definite findings by the lower Appellate Court on the first part of the first issue and on the third issue. Let the record be returned to that Court in order that definite findings may be recorded on those issues. Further evidence will not be admitted. On return of the findings, ten days will be allowed for objections.


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