Research › Browse › Judgment

Allahabad High Court · body

1960 DIGILAW 333 (ALL)

Mewa v. Mohd Faruq Raza,

1960-11-16

MITHAN LAL

body1960
JUDGMENT Mithan Lal, J. - These are three Civil Revisions involving the same legal points and so they are being disposed of by the same judgment. In fact Civil Revision Nos. 294 and 295 of 1954 are connected Civil Revisions, which arise out of two connected suits disposed of by the same judgment by the courts below. They are also between the same parties. The third revision No. 531 of 1955 is between different parties and it is not connected with the other two revisions in the sense in which the other two are connected, yet as a common question of law arises, it has been considered convenient to dispose of this revision also by the same judgment. 2. In Civil Revisions Nos. 294 and 295, which have been filed on behalf of the mortgagees-Defendants, there were three mortgages of the year 1921 for Rs. 299-13-3 and Rs. 449-13-0. Admittedly the mortgages were on property which is covered by the definition of an 'Estate' in U.P. Zamindari Abolition and Land Reforms Act. Two applications for redemption u/s 12 of the Agriculturists Relief Act were filed before the repeal of that Act. The learned Judicial Officer, Jaunpur passed his order of redemption on 23-5-1953, that is, after the Agriculturists Relief Act had been repealed, ordering redemption of the mortgage in one case without any payment as the mortgage money had been paid up, while in the other case, he ordered redemption on payment of Rs. 72, which was found due. Defendants' plea that possession could not be given because of the provisions of U.P. Zamindari Abolition and Land Reforms Act was over-ruled. 3. The matter was taken up in appeal and the learned District Judge, Jaunpur, found that the repeal of the Agriculturists Relief Act had no effect on the rights or remedies of the parties in view of the provisions of Section 6 of the General Clauses Act, and consequently both the appeals were dismissed 4. Civil Revision No. 531 of 1955 is also on behalf of the Defendant mortgagee. In that case a mortgage with possession had been executed on 17th July, 1924, for a sum of Rs. 400 mortgaging four fixed rate tenancy plots and a grove. Civil Revision No. 531 of 1955 is also on behalf of the Defendant mortgagee. In that case a mortgage with possession had been executed on 17th July, 1924, for a sum of Rs. 400 mortgaging four fixed rate tenancy plots and a grove. An application u/s 12 was filed long before the repeal of the Agriculturists relief Act, but the decree for redemption was passed on the 4th December, 1952, that is, after the repeal of the Agriculturists Relief Act. In this case the whole of the mortgage money was found due. The Defendant mortgagee went in appeal, but the appeal was dismissed by the learned District Judge of Jaunpur. In both the courts below, the point raised in this revision that the suit for redemption should not have been decreed in view of the rights created in favour of the mortgagee by the U.P. Zamindari Abolition and Land Reforms Act, had not been taken. 5. It has been contented in these revisions that the Agriculturists Relief Act having been repealed by Section 339 of the U.P. Zamindari Abolition and Land Reforms Act, and the latter Act having recognised the tenancy rights of the mortgagees in possession, the suits for redemption of the property should have been dismissed, and the rights of parties should have been determined under the law as it existed on the date the order in suit or appeal was passed. Reliance for this purpose was based upon the case of Brahm Dutt v. Dip Narain (1) and also on the observations of the Supreme Court in the case of Gummalapura Taggina Matada Kolturuswami v. Setra Veeravva (2) following the decision of Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri. 1941 AWR (F.C.) 39. 6. The contention of the Learned Counsel for the opposite party is that the repeal of Ag. Relief Act in this case or as a matter of fact of any Act cannot affect the previous operation of any enactment so repealed nor can (sic) affect any remedy or any legal proceedings commenced before the repealing Act. It is also their contention that the effect of repeal of Ag. Relief Act cannot mean the abolition of the mortgages of the termination of the relationship of the mortgagor and mortgagee, particularly when the consequence of the vesting of an estate in case of possessory mortgages was only to convert an usufructuary mortgage into a simple mortgage. It is also their contention that the effect of repeal of Ag. Relief Act cannot mean the abolition of the mortgages of the termination of the relationship of the mortgagor and mortgagee, particularly when the consequence of the vesting of an estate in case of possessory mortgages was only to convert an usufructuary mortgage into a simple mortgage. According to their contention a mortgagor is entitled to recover back possession of his property and even if the provisions of the supervening law are taken into consideration the suit for redemption cannot fail and if there is any thing against recovery of possession, the parties can fight it out in the revenue court. 7. The point which a rises for consideration is whether after the repeal of the Agriculturists Relief Act by the U.P. Zamindari Abolition and Land Reforms Act, applications for redemption have become infructous and whether the rights of the parties are to be governed under the old law or the new law and whether the Plaintiffs-opposite parties are not entitled to recover possession. 8. In the two cases decided by this Court two conflicting views have been taken. Mukerji, J. in the case of BRAHM DUTT v. DIP NARAIN (1) already referred to above took the view that the rights of the parties should be decided under the supervening law, and as u/s 21(1)(d) of the U.P. Zamindari Abolition and Land Reforms Act a mortgagee in possession has acquired the status of an ASAMI the suit for redemption and possession could not be decreed. There is no discussion in the judgment about the effect of repeal u/s 6 of the General Clauses Act, nor it seems that his attention was drawn to the provisions of Section 6(g) or Section 14(1)or some other sections of the U.P. Zamindari Abolition and Land Reforms Act. 9. In another case of Molvi Abdul Rashid Khan v. Hari Shanker Lal (4), V.D. Bhargava, J. took a contrary view and held that even though the Agriculturists Relief Act had been repealed by Section 339 of the U.P. Zamindari Abolition and Land Reforms Act, yet there being no provision that this repeal would have any retrospective effect or that the applications pending under Agriculturists Relief Act would become infructuous, such a repeal could not affect the rights of the parties already accrued. According to him the applications would be decided under the old law. According to him the applications would be decided under the old law. Though this decision is of a later date, that is, of 20th February, 1959, yet it seems that his attention was not drawn to the view taken by Mukerji, J. in the case referred to above. 10. As I stated earlier, there is no dispute in the three revisions that the mortgaged property constitutes "an estate" within the meaning of U.P. Zamindari Abolition and Land Reforms Act. The Agriculturists Relief Act was repealed by Section 339 read with List I of Schedule III of the Zamindari Abolition and Land Reforms Act. The effect of repeal has been partly mentioned in Section 6, Clause (i) while dealing with the consequences of vesting of an estate. The only exception which has been made from the effect of repeal, (which is given in Section 6 of the General Clauses Act) relates to suits and proceedings of the nature to be prescribed pending in any court at the date of vesting and proceedings or any decree or order in any such suit or proceeding. Rule 4 of the Rules framed by the Government, specifies the suits and proceedings to be stayed, but the Agriculturists Relief Act or any provision of it has not been specified as suits and proceedings, which were required to be stayed. This means that the legislature fully contemplated that the effect of repeal of the Agriculturists Relief Act would be the same as given in Section 6 of the General Clauses Act. 11. Before is deal with Section 6 of the General Clauses Act it may also be mentioned that as a consequence of the vesting of an estate it was provided in Section 6(g)(i) of the U.P. Zamindari Abolition and Land Reforms Act that "every mortgage with possession existing on any estate or part of an estate on the date immediately preceding the date of vesting shall, to the extent of the amount secured on such estate or part, be deemed, without prejudice to the rights of the State Government u/s 4, to have been substituted by a simple mortgage;" Obviously the mortgages existing on estates or part thereof were not abolished and were treated to be existing only with this change that instead of possessory mortgages they became simple mortgages. 12. 12. This is further corroborated by the provisions of Section 14(i) of the said Act, wherein the following has been provided: Subject to the provisions of Sub-section (2), a mortgagee in possession of an estate or share thereunder shall, with effect from the date of vesting cease to have any right to hold or possess as such any land in such estate." This can only mean that the mortgagee in possession could not remain in possession as a mortgagee. There is again an implication that the mortgage will exist and will not be abolished. A provision like the one referred to above had to be made because right of ASAMIS were conferred on mortgagees in actual possession, from a mortgagor belonging to certain categories. u/s 21(1)(d) it has been provided that: Notwithstanding anything contained in this Act every person who, on the date immediately preceding the date of vesting, occupied or held land as a mortgagee in actual possession from a person belonging to any of the classes mentioned in Clauses (b) to (e) of Sub-section (1) of Section 18 or Clause (i) to (vii) and (ix) of Section 19. 13. Mortgages of fixed rate tenancy and grove will be covered by Clauses (c) and (e) of Sub-section (1) of Section 18. Obviously the legislature while repealing Agriculturists Relief Act did not abolish the existing mortgages of any estate or part thereof and consequently if a mortgage is existing, a suit for its redemption cannot be dismissed, merely on the ground that certain rights in mortgaged land had accrued to the mortgagee. 14. A passing reference may be made to the provisions of Section 6 of the U.P. General Clauses Act, which lays down the effect of repeal. 14. A passing reference may be made to the provisions of Section 6 of the U.P. General Clauses Act, which lays down the effect of repeal. That Section reads as follows: Where any Uttar Pradesh Act repeals any enactment hitherto made or here after to be made, then, unless a different intention appears, the repeal shall not (a) revive any thing not in force; ....; (b) affect the previous operation of any enactment so repealed or any thing duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty....; or (e) affect any remedy or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such remedy may be enforced and any such investigation or legal proceeding may be continued and concluded, any such penalty ... had not been passed. There being nothing contrary in the repealing Sections of U.P. Zamindari Abolition and Land Reforms Act, that is, Section 339 and there being positive indication to keep alive the possessory mortgages in the form of simple mortgages the mortgagor's right to redeem or the remedy of redemption continued unaffected. As already discussed, it cannot be said that the provisions of Agriculturists Relief Act could not be applied to applications pending disposal either in the first court or the appellate court on the date of the vesting. The remedy which was available to a mortgagor under the repealed Act could be pursued as if Agriculturists Relief Act had not been repealed, that is, the mortgages could be redeemed. It cannot therefore be accepted that the effect of repeal of the Agriculturists Relief Act was to make the redemption applications filed under the provisions of that Act untenable. If a possessory mortgage was converted into a simple mortgage, such a mortgage could also be redeemed and the right of redemption of the mortgagor could not be taken away. 15. Under the law of mortgages the right of redemption of the mortgagor or of any person interested in the mortgaged property is the very essence of a mortgage. If a possessory mortgage was converted into a simple mortgage, such a mortgage could also be redeemed and the right of redemption of the mortgagor could not be taken away. 15. Under the law of mortgages the right of redemption of the mortgagor or of any person interested in the mortgaged property is the very essence of a mortgage. A reference in this behalf may be made to the provisions of Section 60 of the Transfer of Property Act, which lays down: At any time after the principal money has become due the mortgagor has a right on payment or tender, at a proper time and place of the mortgage-money to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or.... Provided that the right conferred by this Section has not been extinguished by the act of the parties or by decree of a Court. .... The provisions of Section 12 of the Agriculturists Relief Act are (sic) the same lines. That Section also envisages the redemption of a simple mortgage as well as a mortgage with possession because while making an application under that Section the mortgagor has to pray "for an order directing that the mortgage be redeemed, and, where the mortgage is with possession that he be put in possession of the mortgaged property." 16. Persons interested besides the mortgagor in the redemption of a mortgage have been given in Section 91 of the Transfer of Property Act. 17. It will thus appear that the right of redemption of a mortgage is a valuable right and as long as a mortgage subsists that right can always be exercised. In this view of the matter I, with respect, do not agree with Mukerji, J. but agree with the view of V.D. Bhargava, J. Moreover the repeal was not given a retrospective effect and so it could only have a prospective effect not affecting the rights and remedies already accrued or pursued. As I said above, the intention of the legislature was to keep the mortgages alive. 18. As I said above, the intention of the legislature was to keep the mortgages alive. 18. The most important question in these cases is whether along with redemption of mortgages the Plaintiffs-opposite parties are also entitled to recover possession of the mortgaged property, because of the supervening law and the provisions of Section 21 of U.P. Zamindari Abolition and Land Reforms Act. This question is not free from difficulty, but my view is that because certain possessory rights had been conferred on a mortgagee in possession under some of the provisions of the Zamindari Abolition and Land. Reforms Act, a mere decree for redemption can be passed while, for possession, the parties may agitate the matter in a revenue court of competent jurisdiction. 19. An application for redemption given u/s 12 of Agriculturists Relief Act had to be filed in the prescribed form before a court having jurisdiction over the mortgaged property praying for an order directing that the mortgage be redeemed and, where the mortgage is with possession that he be put in possession of the mortgaged property. The Plaintiffs' right to redeem has been preserved by Section 6 of the General Clauses Act, but his right to take possession of the mortgaged property has to be governed by the provisions of Zamindari Abolition and Land Reforms Act. As I said earlier the intention of the legislature in making the various provisions regarding the repeal of the Agriculturists Relief Act and the rights of the mortgagee in possession in the mortgaged property appears to be not to affect the existence of the mortgage but only to affect the rights of the mortgagee in land. By construction of the enactment, that is, U.P. Zamindari Abolition and Land Reforms Act as a whole, it is apparent to me that the intention of the legislature was that the provisions of the Zamindari Abolition and Land Reforms Act should be made applicable to the mortgagees in possession in the manner given in same of the Sections of that Act. In such a case the supervening legislation must prevail to give effect to the intention to the legislature. In such a case the supervening legislation must prevail to give effect to the intention to the legislature. It was held by a Full Bench of this Court in the case of JAGANNATH v. THE BOARD OF REVENUE, U.P. ALLAHABAD (5) that a trespasser, who is being sued u/s 180 of the U.P. Tenancy Act, and who has acquired a status of an ADHIVASI during the pen(sic)lency of the suit or appeal because of the change in law, can set up his right of possession. The provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950, were applied to such a case because of the rights which had accrued in favour of the Defendants. Mukerji, J. also applied the provisions of Zamindari Abolition and Land Reforms Act in the case of BRAHM DUTT(1) referred to above. The appellate court is entitled to take into consideration the changes in law, as held by their Lordships of the Supreme Court in Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, AIR 1959 SC 577 . That case related to an adoption by a Hindu and as during the pendency of the case Hindu Succession Act, 1956, came into Force, the provisions of that Act were applied to the rights of the parties. In mortgages of the estates defined in Z.A. and L.R. Act the legislature made its intention very clear by converting such mortgages into simple mortgages and their conferring the right of ASAMIS on the mortgagees of the estate in possession u/s 21(1)(d). The mere fact that ASAMI rights had been creates in favour of the mortgagees in possession cannot entail dismissal of the suit, because in cases where the land in possession of the mortgagee was SIR or KHUD KASHT of the intermediary such land was deemed to be SIR or KHUD KASHT of the intermediary for purposes of Clause (a) of Section 18(1) See also Section 14(2)(a) in this connection. Since different rights had been envisaged to accrue in favour of the mortgagee in possession of different kinds of estates and since different procedure has been prescribed for ejectment of such mortgagees, for example, grounds for ejectment of ASAMIS have been given in Section 202, while procedure has been given in the sections following that section, therefore the mortgagors cannot be given a decree for possession. It has already been stated that Section 12 of the Agriculturists Relief Act envisages a decree for redemption and also for recovery of possession; therefore, in cases of possessory mortgages of the estates to which the provisions of the Zamindari Abolition and Land Reforms Act apply, a mere decree for redemption can be given and for possession, the parties, of mere precisely, the mortgagors have to go to the revenue court of competent jurisdiction for seeking their remedy for possession, if possession has not already been obtained. 20. In the result, all the revisions are dismissed. In the circumstances of these cases, the parties shall bear their own costs in this Court.