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Aher Harsur Desa Vs. Pinjar Jhina Golan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 4 of 1961
Judge
Reported inAIR1964Guj249
ActsTransfer of Property Act
AppellantAher Harsur Desa
RespondentPinjar Jhina Golan and ors.
Appellant Advocate V.G. Hathi, Adv.
Respondent Advocate D.U. Shah, Adv.
DispositionApplication dismissed
Cases ReferredRamdhan Puri v. Bankey Bihari
Excerpt:
property - mortgage - transfer of property act - whether transactions styled and named as 'ogha-chhut' to be interpreted as kind of lease or mortgage - facts revealed parties were to create mortgage with possession - petitioner claiming right under document dated 28.06.1951 was mortgagee in possession - held, document in question intended to create mortgage with possession and not lease. - - whereas in a so called ogha chhut mortgage the contract terminates, like any ordinary lease by the mere efflux of time, and the courts have nothing more to do than restore the status quo ante. 150/- passed to b, a writing called karz rokha (or debt-note). it provided inter alia that b should hold and enjoy a certain piece of land belonging to a for 20 years and that at the end of that period the..........by a document, dated june 28, 1951 and the transaction was referred to in the document as that of 'ogha-chhut'. under the barkhali abolition act, 1951, enacted by the then saurashtra government, provision was made not giving occupancy rights to tenants. the word 'tenant' was defined to include all persons lawfully cultivating the land but excluded from its purview a person who was a mortgagee-with-possession. under the provisions of the barkhali abolition act, the petitioner applied for an occupancy certificate in the prescribed form. this application was decided in the first instance by the mahalkari at rajula. the mahalkari interpreted this document to be a mortgage-deed and decided that the petitioner was not a tenant and dismissed the application for occupancy certificate. the.....
Judgment:

B.J. Divan, J.

1. The petitioner in this case is a cultivator and he was cultivating land admeasuring 3 acres and 8 gunthas in Rampara village in Rajula Mahal of Amreli District. This land belonged to original opponents Nos. 1 and 2, who were the Barkhalidars in respect of this plot of land. The contention of the petitioner is that the Barkhalidars had leased the land in question to the petitioner and the transaction was effected by a document, dated June 28, 1951 and the transaction was referred to in the document as that of 'Ogha-Chhut'. Under the Barkhali Abolition Act, 1951, enacted by the then Saurashtra Government, provision was made not giving occupancy rights to tenants. The word 'tenant' was defined to include all persons lawfully cultivating the land but excluded from its purview a person who was a mortgagee-with-possession. Under the provisions of the Barkhali Abolition Act, the petitioner applied for an occupancy certificate in the prescribed form. This application was decided in the first instance by the Mahalkari at Rajula. The Mahalkari interpreted this document to be a mortgage-deed and decided that the petitioner was not a tenant and dismissed the application for occupancy certificate. The petitioner went in appeal against the decision of the Mahalkari and the appeal was heard by the Deputy Collector, Rajula, and was dismissed by that officer. Against the decision of the Deputy Collector, the petitioner preferred a revision application to the Gujarat Revenue Tribunal and the Revenue Tribunal also dismissed this revision application. The petitioner thereafter has approached this Court under Article 227 of the Constitution contending that the decisions of the Mahalkari, the Deputy Collector and the Revenue Tribunal were erroneous.

2. The main contention of the petitioner is that the transactions which are styled and named as 'Ogha-Chhut' in Kathiawar have been interpreted by the Courts in Kathiawar as a kind of lease and not a mortgage and the contention is that the document, dated June 28, 1961 was a document of 'Ogha-Chhut' and according to law should have been held to be a transaction of lease.

3. Appendix D to this petition is an English translation of the original document which is in Gujarati. The endorsement made by the stamp-vendor at the time when the stamp-paper of Rs. 3/-was purchased by the Barkhalidars shows that the stamp-paper was sold to the Barkhalidars for the purpose of executing a deed of 'Ogha-Chhut'. The description and the commencement of the document also describes the document as follows:

'Document of 'Ogha-Chhut' of 8 bighas of agricultural land for a fixed period of 8 years for Rs. 350/-.'

4. The operative part of the document is as follows:

'We have taken from you Rs. 350/- (Rupees three hundred fifty only) and in consideration thereof we have handed over to you our Vadi at Rampara village outskirts admeasuring about 8 bighas and forming part of our kapol Giras by way of 'Ogha-Chhut' for a period of 8 years for the abovementioned sum of Rs. 350/- after having taken from you 'Vera' for 8 years in advance.'

The principal question, therefore, arises as to what is the nature of the transaction which the parties intended to enter into by this document of June 28, 1951. In Bhagvadgomandal Gujarati Dictionary, Vol. II, complied by Bhagvatsinhji, the then Maharaja of Gondal in 1944, the word 'Ogha-Chhut' has been described as a document of mortgage-with-possession for a fixed period and the dictionary further proceeds to mention that under this type of document at the end of the specified period, the property goes back to the original owner without any further amount having to be paid. It appears that one Col. Hancock compiled a glossary of revenue terms used in Kathiawar for the use of the Rajasthanik Court at Rajkot and in that glossary of revenue terms, the word 'Ogha Chhut' has been translated as follows:

'Mortgage-with-possession for a fixed term at the end of which the property reverts to the original owner without further payment'.

5. Mr. V. G. Hathi, appearing on behalf of the petitioner, drew my attention to two decisions arising out of cases in the Court of the Judicial Assistant to the Political Agent at Rajkot. In 1 Kathiawar LR 86, Mr. Beaman, who subsequently became Mr. Justice Beaman of the Bombay High Court, decided the case of Bapubhai Ghelabhai v. Bai Ama, as the Judicial Assistant at Rajkot, In that case, the plaintiff had filed a suit to recover possession of three fields as described in the plaint from the defendant alleging that the said fields were mortgaged by his father to the father of the defendant as 'Ogha-Chhut' for Rs. 41/- for a term of 18 years and the father of the defendant had executed to his father a counter document of the same date. In this decision the meaning of 'Ogha-Chhut' from the Glossary of Revenue Terms compiled by Col. Hancock was set out and thereafter Mr. Beaman at page 90 proceeded to consider the incidents of an 'Ogha-Chhut' transaction and stated as follows:

'I am unable to see in what this transaction differs from an ordinary lease, or by what arguments the proposition that the plaintiff is suing to redeem and not to eject the defendant can be supported. It is plain that every so called Ogha-Chhut mortgage is really a lease and that in this particular case the sum of rupees 41 paid by the lessee was nothing but the premium. It is equally plain that on the expiry of this 18 years, the defendant had no right remaining against the plaintiff, and that if nevertheless he resisted him, the latter's remedy was an eviction suit. Mortgages properly so called are of two main kinds, usufructuary, or without usufruct. The distinction to be drawn between the latter class, and a contract of this nature is obvious. The mortgagor when he sues to redeem will always have to pay to the mortgagee the principal at least of the mortgage debt; whereas in a so called Ogha Chhut mortgage the contract terminates, like any ordinary lease by the mere efflux of time, and the courts have nothing more to do than restore the status quo ante. An equally broad, if not quite so obvious, distinction can, as it seems to me, be drawn between usufructuary mortgages and spurious mortgages of this nature. In an usufructuary mortgage where the mortgagee is to have possession, and the profits of the property are to be set against both interest and principal, until as frequently happens the mortgage debt is altogether extinguished, long before the mortgagor sues to redeem, there is this essential element that the contract is indefinite and conditional; and that in adjusting the rights of the parties, the courts have to go into the accounts, and take evidence of uncertain and fluctuating conditions outside the simple words of the mortgage deed.'

After considering the terms of the document he further stated as follows:

'And whether or not such a contract is loosely and inaccurately styled locally an Ogha Chhut mortgage: when the parties to it seek their legal remedies the terms on which the courts will admit their suits, have to be fixed with regard to the true nature of the relief sought, and not upon a mere point of nomenclature.'

6. A similar point came up for consideration in 1895 in the case of Wala Devait Ala v. Wala Champraj Samat, 6 Kathiawar L R 130. What happened in that case was that a document was executed in 1809. In the document itself, apart from setting out the terms of the transaction, no reference to the document viz., that it was a transaction of 'Ogha-Chhut', was made and it was mentioned that a share of the particular village was being handed over for a period of 12 years in consideration of Rs. 1450/- and was to remain with the person in whose favour the document was executed for a period of 12 years and at the end of that period the executants of the document were to get back their one-half share in the village and at the end of that period nothing was to be due to or by anybody. It was with reference to this document that the final authority deciding this matter; viz., the Governor-in-Council, who used to hear Civil Second Appeals from Kathiawar decided that the document was that of a lease and not a mortgage and it was held that this document created a lease and not a mortgage.

7. In spite of these earlier decisions, viz., in I Kathiawar LR 86 and 6 Kathiawar LR 130, the deciding authority, viz., the Judicial Assistant in 1900 considered the transaction of 'Ogha-Chhut' to be a mortgage-with-possession in the case of Khawad Khoda Bukhad v. Khachar Nathoo Laxman, II Kathiawar LR 243. In that case, two unregistered 'Pula-Chhut' documents were relied upon and as the law then stood, mortgages required registration whereas leases did not require registration and it was held by the Judicial Assistant that 'Pula-Chhut' or 'Ogha-Chhut' were defined as mortgage-with-possession in the Glossary of Revenue Terms in Kathiawar Directory, and as such they came within the term 'mortgage' and therefore the deeds being unregistered were inadmissible in evidence.

8. I have referred to these three decisions from the Kathiawar Law Reports in extenso for the purpose of pointing out that so far as the judicial decisions by the authorities in Kathiawar itself were concerned, there is no line of authorities laying down conclusively that in every case a transaction of 'Ogha-Chhut' should be treated as a lease and not as a mortgage. The dictionary meaning of an 'Ogha-Chhut' transaction indicates that it is a mortgage with possession. In 1 Kathiawar LR 86, Mr. Beaman, as he then was, interpreted the document before him as that of a lease and not as that of a mortgage and he decided the matter on the basis of the incidents of a transaction of mortgage as distinct from the incidents of a transaction of lease.

9. It is true that a mere description of a document or a transaction one way or the other would not alter the essential nature of a particular transaction embodied in that document. In the case of Nidha Sah v. Murlidhar, 30 Ind App 54 (PC), their Lordships of the Privy Council were considering a transaction which was in terms described as a mortgage and in the document itself a mortgage with possession was purported to have been created and the document provided that on the expiration of the term, the mortgagor 'shall come in possession of the mortgaged villages without settlement of accounts ..... that on the expiration of the term ........ the mortgagee shall have no power whatever in respect of the said estate . . . .and after the expiration of the term, this mortgage deed .... shall be returned to the mortgagor without his accounting for (paying) the mortgage money secured under this document'. It was held by the Privy Council that the instrument though it was called a mortgage and though the Privy Council found it convenient to follow the nomenclature used in the document itself and in the pleadings and judgments in the Courts below, was not a mortgage in any proper sense of the word; and it was not a security for the payment of any money or for the performance of any engagement. No accounts were to be rendered or required. There was no provision for redemption express or implied. It was simply a grant of land for a fixed term free of rent in consideration of a sum made out of past and present advances.

10. Mr. Hathi also drew my attention to the decision in 4 Kathiawar L.R. 289, Wala Devait v. Wala Champraj Samat but this decision is a decision of the lower authority which ultimately went in appeal and is reported at 6 Kathiawar LR 130 and since I have already dealt with the judgment of the appellate authority, it is not necessary for me to deal with the decision of the lower Tribunal at this juncture. It is true that in 4 Kathiawar LR 289, it was found that the document called a 'Pula-Chhut' document was executed between the parties and even then it was held by the Judicial Assistant to the Political Agent that the document was a lease pure and simple and not that of a mortgage.

11. Various authorities were cited before me for the purpose of showing that in cases of this nature, it is not the name given to a contract but it is the contents or the relations constituted by it that determine its nature. In the case of Abdulbhai v. Kashi, ILR 11 Bom 462, what happened was that A, in consideration of a debt of Rs. 150/- passed to B, a writing called karz rokha (or debt-note). It provided inter alia that B should hold and enjoy a certain piece of land belonging to A for 20 years and that at the end of that period the land should be restored to A, free from all claims for payment of the principal or interest of the debt of Rs. 150; that if B planted vines, he should be at liberty to retain the land so planted after the lapse of the 20 years as a tenant at Rs. 50/- per annum. It was held by the Division Bench of the Bombay High Court consisting of West and Birdwood, JJ. that on the construction of the debt-note, the contract between the parties was not a mortgage and that the defendant had a right to retain occupation at least of the vineyard, subject only to a rent of Rs. 50/- a year. There was no stipulation for payment of interest, nor was there any agreement for the payment of Rs. 150/-in any case.

12. The question as to what is the test to be applied in transactions of this nature came up for consideration before the Supreme Court in the case of Ramdhan Puri v. Bankey Bihari, AIR 1958 SC 941; and the rule to determine whether a particular transaction was a mortgage or a lease bas been laid down as follows:

'Where the question to be decided by the Court is whether the transaction is a lease or mortgage the only guiding rule that can be extracted from the cases on the subject is that the intention of the parties must be looked into and that once you get a debt with security of land for its redemption then the arrangement is a mortgage by whatever name it is called.'

And on the construction of the particular document before it in that particular case, the Supreme Court held that under the document there was a relationship of creditor and debtor between the parties and the property was given as security for the payment of the amount advanced with interest; that whatever ambiguity there might be in the recitals that was dispelled by the unambiguous declaration made by the parties that the property was given as security for the loan and the document was executed as a mortgage; that the gist of the document was not a letting of the premises, with a rent reserved, but a mortgage, of the premises with a small portion of the income of it made payable to the mortgagor; and that, therefore, there was no scope for the argument that the document was a lease and not a mortgage.

13. In the instant case, what I have to consider from the language used in the document itselfas to whether the intention of the parties was tocreate a mortgage or a lease. At the time whenthe document was executed in 1951 the Transferof Property Act was in force in this particulararea; and though Section 107 of the Transfer of PropertyAct requires, that a lease should be executed both,by the lessor and the lessee, this particular document of June 28, 1951, has been executed onlyby the owners i.e., the Barkhalidars and not bythe petitioner. However, this by itself is not sufficient to indicate that the transaction was that ofa mortgage and not that of a lease. It bas to beborne in mind that this particular transaction wasentered into by laymen who had not the benefitof any advice in conveyancing or of a legal expertand, therefore, the words which they have usedin this particular document have to be consideredfrom the point of view of the laymen and theselaymen have said in the document that the landin question was being given to the petitioner ason 'Ogha-Chhut', the Gujarati original being^^vks?kk NqVuh :,**-Interpreting the incidents of a transaction of 'Ogha Chhut', some judicial authorities have undoubtedly held that a transaction of 'Ogha-Chhut' is a lease and not a mortgage but to laymen this distinction between a leaveand a mortgage based on the incidents of a transaction of 'Ogha-Chhut' would not be clear. So faras the laymen were concerned, they would be outto create a transaction in the sense in which it isordinarily understood. The ordinary meaning ofthis transaction of 'Ogha-Chhut' is a mortgagewith possession for a fixed number of years and insuch a transaction the mortgagee would get backthe possession of the land at the end of the fixedperiod without payment in any manner. One ofthe essential characteristics of such a transactionis that the amount is paid or adjusted at the timeof executing the document 'Ogha-Chhut' and thereafter the person in whose favour it is executed remains in enjoyment of the property without paying anything and at the end of the fixed period,the property reverts back to the executant of thedocument without anything more having to be paidor done. If the Barkhalidars, the laymen in thiscase, wanted that a mortgage with possession shouldbe created and with that intention executed thisdocument, then it would be an incident flowingfrom that transaction of mortgage' with possessionthat the Barkhalidars would be entitled to redeemthe mortgage. In my opinion, it would not becorrect to find out whether there was a clause forredemption or not and then to decide whether thetransaction was a transaction of lease or a mortgage. The parties were out to create a mortgagewith possession as ordinarily understood by a layman and if it was a mortgage then the mortgagorwould be entitled to redeem because that is anincident which flows from a transaction of mortgage. In my opinions in the instant case, it cannot be said that the parties were out to create alease. The word 'Vera', which has been usedat two different places in the document of June 28,1951, is capable of being interpreted as 'rent'though the ordinary dictionary meaning of this word 'Vera' is 'tax'; but, in my opinion, the use of the word 'Vera' will not make a difference so far as the question of deciding the nature of the transaction between the parties is concerned. The parties said in terms that it was as on. 'Ogha-Chhut' that the Barkhalidars were giving the land to the petitioner and it is in the light of the dictionary cleaning as also in the light of the meaning given in Glossary of Revenue Terms compiled by Col. Hancock that I have considered the matter for the purpose of deciding what the intention of the laymen like the Barkhalidars would have been at the time of executing the document in 1951.

14. Under these circumstances, I have come to the conclusion that the document in question was intended to create a mortgage with possession and not a lease. Therefore, the Manalkari, the Deputy Collector and the Gujarat Revenue Tribunal were right when they held that the petitioner, who claimed his rights under the document of June 28, 1951, was a mortgagee-in-possession and, therefore, excluded from the definition of the word 'tenant' under the Earkhali Abolition Act.

15. The result, therefore, is that this Special Civil Application fails and is dismissed. There is no reason why the ordinary rule of costs following the event should be departed from. The petitioner shall pay the costs of opponents Nos. 1 and 2 of this Special Civil Application. Rule is discharged.


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