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Jwala Prasad Rai and anr. Vs. Ram Sarup Rai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All295(1); 29Ind.Cas.923
AppellantJwala Prasad Rai and anr.
RespondentRam Sarup Rai and ors.
Excerpt:
mortgage - occupancy holding and fixed-rate holding mortgaged together for lump sum--whole transaction, if illegal. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - if counsel for the respondents is right, there can be no doubt whatever that this appeal should be dismissed for the appellants as transferees of an occupancy holding have clearly no right to maintain this suit. the contract was one and indivisible, and it seems to me that as the transfer of an occupancy holding is void the whole transfer failed......are said to include the five plots covered by the mortgage. the appellants on the strength of the sale-deed sued the representatives of the original mortgagee for redemption of the five plots mortgaged. the munsif decreed the claim, but his decision was reversed by the subordinate judge who held that as the deed of sale in favour of the present appellants included plots which were part of an occupancy holding and, therefore, not legally transferable, the deed of sale was void and conferred no title upon the appellants. there is no definite finding and counsel in t his court are not agreed as to which of the plots are part of the occupancy holding and which are part of a fixed-rate holding. counsel for the respondents maintains that all fiva plots mortgaged were held by the mortgagor as.....
Judgment:

Chamier, J.

1. Musammat Jhiria, represented in this suit by her heir Deoki, who was at first plaintiff No. 1 but subsequently became defendant No. 13, mortgaged five plots of land to Sukhdeo Rai in July 1877. Shortly before this suit was brought Deoki transferred to Jwala Prasad and Siri Kishun, the present appellants, 9 or 10 plots which are said to include the five plots covered by the mortgage. The appellants on the strength of the sale-deed sued the representatives of the original mortgagee for redemption of the five plots mortgaged. The Munsif decreed the claim, but his decision was reversed by the Subordinate Judge who held that as the deed of sale in favour of the present appellants included plots which were part of an occupancy holding and, therefore, not legally transferable, the deed of sale was void and conferred no title upon the appellants. There is no definite finding and Counsel in t his Court are not agreed as to which of the plots are part of the occupancy holding and which are part of a fixed-rate holding. Counsel for the respondents maintains that all fiva plots mortgaged were held by the mortgagor as an occupancy tenant. The learned Vakil for the appellants maintains that Nos. 167 and 169/1 mentioned in the sale-deed correspond with No. 129 mentioned in the mortgage. If Counsel for the respondents is right, there can be no doubt whatever that this appeal should be dismissed for the appellants as transferees of an occupancy holding have clearly no right to maintain this suit. I will assume, however, that one of the plots covered by the mortgage (No. 129) was part of a fixed-rate holding and that the transfer to the appellants covered an occupancy holding and also part of a fixed-rate holding. It is contended that the transfer was valid as regards plot No. 129 and conferred upon the appellants at least a right to redeem that plut. The respondents, on the other hand, objected to the redemption of one plot only. It appears to me that the Subordinate Judge was right in dismissing this suit. Regarded in the light most favourable to the appellants, the transfer was a transfer of parts of an occupancy and of fixed-rate holding for a lump sum. The contract was one and indivisible, and it seems to me that as the transfer of an occupancy holding is void the whole transfer failed. But apart from that, it appears to me that the appellants are not entitled to pick out one of the plots in possession of the respondents and redeem, that leaving them with the other plots. The appeal is dismissed with costs, in eluding fees on the higher scale.


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