Makeshar Dube v. Sheo Dutt Koeri — 1970 DIGILAW 227 (ALL)

JUDGMENT S.N. Dwivedi, J. - All these cases have been referred to a Full Bench for opinion on a single question. The question is his: Whether a person to whom the mortgagor of sir and khudkasht plots has sold or gifted the right of redemption in the said plots is the 'mortgagor' within the meaning of that word in Section 14(2) of the ZA and LR Act (hereinafter called the Act)? 2. The relevant part of Section 14 provides: (1) Subject to the provisions of Sub-section (2), a mortgagee in possession of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate. (2) Where any such land was in the personal cultivation of the mortgagee on the date immediately preceding the date of vesting- (a) if it was sir or khudkasht of the mortgagor on the date of the mortgage, the same shall, for purposes of Section 18, be deemed to be the sir or khudkasht of the mortgagor or his legal representative;.... Explanation-for the purposes of this section a mortgagee in possession includes a thekadar of his rights as mortgagee in the land. 3. According to one argument before us the question formulated earlier by me should be answered in the affirmative; according to the rival argument we should give a negative answer. The answer depends upon the true meaning of the word 'mortgagor' in Section 14(2)(a). 4. Some of those who want an affirmative answer have submitted that the vendee or the donee is included in the phrase 'his legal representative'. I am unable to accept this argument. The expression 'legal representative' is defined in Section 3(16) of the Act. It has the meaning assigned to it in the Code of Civil Procedure. According to Section 2(11) of the Code it means a person who in law represents the estate of a deceased person. Where the mortgagor is alive, his vendee or donee will not be his legal representative. The Act furnishes no definite evidence to show that the expression 'legal representative' has been used in Section 14(2)(a) in a sense different from the one fixed by Section 3(16) of the Act. 5. The only surviving consideration is whether the vendee or the donee of the mortgagor is included in the word 'mortgagor' in Section 14(2)(a). 6. The Act furnishes no definite evidence to show that the expression 'legal representative' has been used in Section 14(2)(a) in a sense different from the one fixed by Section 3(16) of the Act. 5. The only surviving consideration is whether the vendee or the donee of the mortgagor is included in the word 'mortgagor' in Section 14(2)(a). 6. Prima facie the word 'mortgagor' is quite broad to embrace his vendee and donee. In the general law relating to transfer of property in this country it includes them-See Section 59-A of the Transfer of Property Act. There appears no reason why it should not include them in Section 14(2)(a). 7. But the contenders for the negative answer point out that the ambit of the word 'mortgagor' is cut down by its close neighbour 'his legal representative'. 8. It is now necessary to examine the context of Section 14(2)(a). The object of Section 14(2)(a) is to create a fiction for purposes of Section 18(1)(a) of the Act. Section 18(1)(a) does not, however, use the word 'mortgagor'. It uses the word 'intermediary'. The word 'mortgagor' in Section 14(2)(a) should accordingly be read as 'mortgagor-intermediary'. Now 'intermediary' is defined in Section 3(12) of the Act to mean 'proprietor'. 'Proprietor' is defined in Section 3(21) to mean 'a person owning the estate' and 'includes the heirs and successors-in-interest of a proprietor.' Thus the word 'mortgagor' in Section 14(2)(a) means the mortgagor-intermediary as well as his heirs and successors-in-interest. His vendee and donee are undoubtedly his successors-in-interest. 9. The scheme of Section 13(1) and (2)(a) is similar to the scheme of Section 14(1) and (2)(a). Section 13(1) provides that a thekedar of an estate or share therein shall cease to hold or possess as such any land in the estate. Section 13(2)(a) pertinently reads: Where any such land was in the personal cultivation of the thekedar on the date immediately preceding the date of vesting the same shall- (a) if it was sir or khudkasht of the lessor on the date of the grant of the theka, be deemed for purposes of Section 18, to be the sir or khudkasht of the lessor.... 10. Prima facie the word 'lessor' includes his vendee and donee of the lessee rights and none has argued to the contrary before us. 10. Prima facie the word 'lessor' includes his vendee and donee of the lessee rights and none has argued to the contrary before us. Accordingly I am unable to comprehend why the word 'mortgagor' in Section 14(2)(a), which is in pari materia with Section 13(2)(a), should not include his vendee or donee of the right of redemption. 11. The phrase 'his legal representative' does not restrict, but enlarges, the ambit of the word 'mortgagor'. It may be that when the Act was on the anvil, the estate of some mortgagors was vested in the executor or administrator. By virtue of Section 211(1) of the Indian Succession Act the executor or administrator will be his legal representative. But the executor or administrator cannot be called the 'mortgagor' in the law relating to transfer of property. In that law the 'mortgagor' includes a person who derives title from him, that is, a person who succeeds the mortgagor by inheritance or will or by sale or gift to the right of redemption-Piarey Lal v. Dina Nath 1939 AWR (HC) 33. The word 'mortgagor' would not include a person who subsequently takes a mortgage from the mortgagor-(ibid at p. 35, col. 2). Like the mortgagee, an executor or administrator does not derive title from the mortgagor. The estate is vested in him only for the purpose of representing the persons beneficially interested in the estate of the Mt. Kulwanta Bewa and Others Vs. Karam Chand Soni and Others, AIR 1938 Cal 714 . The beneficial interest is vested in the legatees and the heirs-at-law. I do not think that the executor or administrator is included in the word 'mortgagor'. It was accordingly necessary to add in Section 14(2)(a) the phrase 'his legal representative' in order to cover the case of an executor or administrator of the estate of a deceased mortgagor. The phrase is neither redundant nor restrictive of the meaning of the word 'mortgagor'. 12. The inclusion of the vendee or donee of the mortgagor advances equity. If the Act had not come into force, the vendee or donee, on redeeming the mortgage, would get exclusive possession over the former sir and khudkasht of the mortgagor where the mortgagor was the sole proprietor of the land. Where he was a cosharer only, the vendee or donee could get exclusive possession with the consent of other cosharers or joint possession with them. Where he was a cosharer only, the vendee or donee could get exclusive possession with the consent of other cosharers or joint possession with them. Even if he got possession without their consent, he would become khudkasht holder after three years' possession. This right of the vendee or donee is preserved to him by the interpretation of the word 'mortgagor' suggested by me. The rival interpretation deprives him of that right. It may be observed that Section 14(1) has already deprived the mortgagee of the right to possess the land. So as a result of the rival interpretation neither gets the land and it vests in the State. It is difficult to believe that this result was intended by the legislature. 13. Sri Radhey Shyam has invited our attention to the explanation to Section 14 while pressing for a negative answer to the question formulated by me. It is said that if the legislature really intended to benefit a transferee of the mortgagor, another explanation could have been added to that effect. But the explanation to Section 14 was necessary. The thekedar of the rights of the mortgagee does not, to my mind, derive title from the mortgagee. He gets only an interest in the rights of the mortgagee. So he would not be included in the word 'mortgagee'. 14. From 1957 to 1966 this Court has taken the view that the transferee of the mortgagor is included in Section 14(2)(a)-Noor Mohd. v. Sirajuddin 1957 AWR 850 ; Brahma Gir v. Mahant Sant Gir 1958 AWR 692 ; Hari Narain v. Ram Surat 1963 ALJ 19; Ram Surat v. Hari Narain 1966 AWR 101. On the faith of these decisions transactions must have taken place between the transferee of the mortgagor and strangers. It seems to me to be proper to protect these transactions entered in good faith by upholding the long course of decisions. 15. In the result, I am of opinion that the question formulated by me should be answered in the affirmative. Verma, J. 16. I agree with S.N. Dwivedi, J. and have nothing to add. Hari Swarup, J. 17. I had the advantage of reading the judgment proposed by brother Dwivedi, J., but with great respect I am unable to agree with the answer proposed in that judgment to the question referred to the Full Bench. 18. Verma, J. 16. I agree with S.N. Dwivedi, J. and have nothing to add. Hari Swarup, J. 17. I had the advantage of reading the judgment proposed by brother Dwivedi, J., but with great respect I am unable to agree with the answer proposed in that judgment to the question referred to the Full Bench. 18. The question which we are called upon to answer is: Whether a transferee of the equity of redemption from a mortgagor can be "The mortgagor or his legal representative" within the meaning of that term, as used in Clause (a) of Sub-section (2) of Section 14 of the UP ZA and LR Act (hereinafter referred to as 'the Act')? 19. The relevant part of Section 14 of the Act runs as follows: * * * * 20. The various provisions of the Act point to the general policy of the legislation that all land should go back to the person who was and except for some interfering cause, would have remained in cultivatory possession thereof. So far as Sir and Khudkasht land is concerned, rights created therein are mentioned in Section 18 of the Act. Section 18 says that, (1) subject to the provisions of Sections 10, 15, 16 and 17 all lands in possession of or held or deemed to be held by an intermediary as Sir, Khudkasht or an intermediary's grove...on the date immediately preceding the date of vesting shall be deemed to be settled by the State Govt. with such intermediary, lessee, tenant, grantee or groveholder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as a Bhumidhar thereof. Section 10 of the Act deals with the rights of the tenants of Sir, 11 with the rights in Sir and Khudkasht lands allotted in lieu of maintenance allowance, Sections 12 and 13 with the rights in Sir and Khudkasht lands in possession of Thekedars and Section 14 deals with estate in possession of a mortgagee with possession over Sir and Khudkasht land. Sections 15 and 17 deal with other rights in Sir land. 21. The transferee from the mortgagor of the equity of redemption could be a bhumidhar, u/s 18 of the Act if he could be deemed to be an intermediary in possession of or holding or deeming to hold the land as Sir or Khudkasht. Sections 15 and 17 deal with other rights in Sir land. 21. The transferee from the mortgagor of the equity of redemption could be a bhumidhar, u/s 18 of the Act if he could be deemed to be an intermediary in possession of or holding or deeming to hold the land as Sir or Khudkasht. The transferee from a mortgagor where the mortgage was with possession cannot be deemed to be or ever to have been in possession of the land. The land being never the Sir or Khudkasht of the transferee of the equity of redemption cannot be treated as Sir or Khudkasht held by him. The land can also not be deemed to be held as Sir or Khudkasht by the transferee as he had himself not put the mortgagee into possession of the land and the mortgagee cannot be deemed to be holding on his behalf The proprietary rights vest in the transferee only after the possession over Sir and Khudkasht land is given to the mortgagee by the original mortgagor. Hence the transferee could not, as such, become a Bhumidhar under any of the conditions u/s 18 of the Act. 22. On the other hand the Zamindar or intermediary who was in possession of and held the land as his Sir and Khudkasht on the date of the mortgage could be deemed to be holding the same, by a fiction of law, if it was being cultivated by his mortgagee particularly because the mortgagee could not himself, under the mortgage, become the Sir or Khudkasht-holder of the land. The land under the mortgage goes to the mortgagee only by way of security and hence it may be possible to hold that the original mortgagor continues to be in constructive possession of the land or holding it or deeming to hold it as his Sir or Khudkasht within the meaning of Section 18 of the Act. 23. Section 14 of the Act deals with this particular situation and deals with rights of a person who had transferred his Sir and Khudkasht land, along with the proprietary rights in the land by way of a mortgage. The effect of Section 14(1) of the Act is that the mortgagee in possession of the Sir and Khudkasht land, with effect from the date of vesting, ceases to have any right to hold or possess any land in the estate. The effect of Section 14(1) of the Act is that the mortgagee in possession of the Sir and Khudkasht land, with effect from the date of vesting, ceases to have any right to hold or possess any land in the estate. If it was not Sir and Khudkasht he may acquire rights therein u/s 19 of the Act on compliance of certain conditions. But if the land was Sir or Khudkasht on the date of the creation of the mortgage then he would have no right in this land and the question arises as to who should be deemed to be holding this land as Sir or Khudkasht. As the land could not be deemed to be Sir or Khudkasht of any person under these circumstances, on the date immediately preceding the date of vesting, a specific provision to cover the situation has been made Under Clause (a) of Sub-section (2) of Section 14 of the Act. By this clause, for purposes of Section 18, the land which was Sir or Khudkasht of the mortgagor on the date of the mortgage would be deemed to be the Sir or Khudkasht of the mortgagor or his legal representative. By this deeming clause, a fiction has been introduced and the person who was the mortgagor, or, if he is dead, his legal representative, would be deemed to be holding the land as his Sir or Khudkasht. This deeming clause became necessary because the word 'intermediary' u/s 18 would not include a mortgagor who had transferred his proprietary rights. Transferee of the equity of redemption at the same time could not be deemed to be, as shown earlier, holding the land as his Sir or Khudkasht. To meet this special situation Section 14 of the Act used the word 'mortgagor or his legal representative' and not 'mortgagor or transferee from the mortgagor'. Hence applying the apparent meanings to the words of the section it would be the mortgagor and not his transferee who will be deemed to be holding land as Sir or Khudkasht. 24. To meet this special situation Section 14 of the Act used the word 'mortgagor or his legal representative' and not 'mortgagor or transferee from the mortgagor'. Hence applying the apparent meanings to the words of the section it would be the mortgagor and not his transferee who will be deemed to be holding land as Sir or Khudkasht. 24. Further Explanation 2 to Sub-section (2) of Section 14 runs as follows: Where any land has been mortgaged with possession and the mortgagor makes a second or subsequent mortgage of such land in favour of the same, or a different person, the expression on the date of the mortgage shall mean the date of the mortgage in pursuance of which the mortgagor first transferred possession to mortgagee. The explanation indicates that the relevant date is the date of the mortgage in pursuance of which the mortgagor first transferred possession to mortgagee and thus leads to the conclusion that u/s 14 the land will revert back to the person who had been cultivating it as his Sir or Khudkasht before the mortgage intervened. In the case of Rana Sheo Ambar Singh v. Allahabad Bank Ltd. 1961 AWR 546 the Supreme Court held that "the Bhumidhari rights created u/s 18 are not compensation; they are special rights conferred on the intermediary by virtue of his cultivatory possession of the lands comprised therein." The intention of the law appears to be that the person who was in the cultivatory possession of the land should get it back on the enforcement of the ZA and LR Act. The aim of Section 14 of the Act is to give back to the cultivator of the soil, or his legal representative, the land which he had to part with under economic pressure. The purpose is to remove the eclipse on his cultivatory possession which had come into existence by the mortgage and then to put back the original holder of the Sir or Khudkasht into possession of the land. Section 14 puts the clock back to the date of the original mortgage and restores to the cultivator the rights that existed on the date of the original mortgage. 25. Section 14 puts the clock back to the date of the original mortgage and restores to the cultivator the rights that existed on the date of the original mortgage. 25. The transferee of the equity of redemption could have never cultivated the land and it cannot be the intention of the law to settle the land with him as bhumidhar on the possessory mortgage becoming a simple mortgage by operation of law. The purchaser of the equity of redemption gets compensation for his proprietary rights and as he never was the cultivator of the soil it cannot be taken that a special privilege would be granted to him by treating the land as his Sir or Khudkasht on the mortgage becoming a simple mortgage. The transferee having never been in possession of the land as Sir and Khudkasht cannot be deemed to be ever in possession or to have ever held the land as Sir or Khudkasht so as to entitle him to become the bhumidhar of the land. The transferee of equity of redemption gets only the proprietary rights in the land in dispute and even if the UP ZA and LR Act had not intervened, would not have become the Sir or Khudkasht-holder of the Sir and Khudkasht which belonged to the mortgagor. 26. Reliance was placed on Section 59-A of the Transfer of Property Act for the contention that the word 'mortgagor' in Section 14(2)(a) of the Act should include the transferee of the equity of redemption. Section 59-A of the Transfer of Property Act runs as follows: Unless otherwise expressly provided, reference in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively. 27. The mortgagor has been defined in Section 58 and does not include a transferee of the equity of redemption. The term 'mortgagor' in Section 14 must have the same meaning. Section 59-A creates a fiction for purposes of Ch. IV of the Transfer of Property Act only and the fiction cannot be utilised for defining the word 'mortgagor' in Section 14 of the UP ZA and LR Act. The term 'mortgagor' in Section 14 must have the same meaning. Section 59-A creates a fiction for purposes of Ch. IV of the Transfer of Property Act only and the fiction cannot be utilised for defining the word 'mortgagor' in Section 14 of the UP ZA and LR Act. The mortgage with possession stands automatically changed into a simple mortgage by operation of law under the UP ZA and LR Act and the term mortgagor therein must be deemed to refer to the original mortgagor as the relevant time fixed by Explanation (2) is the date of the creation of the first mortgage. Section 14 of the Act deals with special circumstances under the special enactment and aims at restoring back possession of the land to the person who had actually cultivated the land as Sir or Khudkasht. The fiction created by Section 59-A cannot, therefore, be applied for interpreting the word 'mortgagor' in Section 14(2)(a) of the Act. Had this not been the intention of the statute there would not have been any necessity for using the word 'mortgagor' in Section 14(2)(a) of the Act and the appropriate word would have been "intermediary". As on the date immediately preceding the date of vesting both the mortgagor and the transferee of the equity of redemption could be in existence, the word 'intermediary' would have been used in place of the word 'mortgagor' if the intention had been to confer rights on the transferee instead of the original mortgagor. 28. The use of the term 'mortgagor' along with an expression "or his legal representative" makes it further clear that the word 'mortgagor' was used in Clause (a) of Sub-section (2) of Section 14 in the sense of the original mortgagor and not the transferee of the equity of redemption. The expression "or his legal representative" shows that on the death of the mortgagor the land will be deemed to be the Sir or Khudkasht of his legal representative. Suppose a mortgagor had died before the date of vesting and on the date of vesting his legal representative as well as the transferee of the equity of redemption were alive, then if the word 'mortgagor' could be given an interpretation so as to mean or include the transferee of the equity of redemption a conflict would arise between him and the legal representative of the mortgagor. A conflict cannot be implied in the terms of a statute. Giving a harmonious construction to the expression "the mortgagor or his legal representatives" it is clear that the mortgagor here means only the original mortgagor and not the transferee of the equity of redemption. 29. It was urged that Section 14 should be interpreted in the light of Section 13 of the Act. Section 13 deals with the rights which come into existence over the land which was in possession of a Thekedar on the date immediately preceding the date of vesting. There is, however, a clear distinction between the provisions of Sections 13 and 14 and the two sections cannot be given similar interpretation. The absence of the words "legal representative" in Section 13 and the presence thereof in Section 14 is purposive. Section 13 restricts the rights to the lessor and does not extend it to the legal representative of the lessor, the reason for which appears to be that when a Theka is created or lease is given the purpose of parting with possession is to give up the cultivatory possession obviously for the reason that the lessor is not in the position to cultivate the land himself. Theka or lease is given by a person unable or unwilling to cultivate the land and not under economic pressure under which a mortgage is normally created. Section 14 deals with a case in which normally a cultivator parts with possession under economic pressure while Section 13 deals with a case where a cultivator parts with possession due to his unwillingness or inability to cultivate the land. 30. A more material distinction between the provisions of Sections 13 and 14 is that Thekedar u/s 13 is not required to give up possession immediately on the notification for vesting being issued under the Act. The lessor does not get into possession but the possession continues to be of the Thekedar for the unexpired period of the lease or for five years if the same is shorter. He acquires the status of an Asami with a right to cultivate the land. The provision is also in Section 13 which enables the Collector to permit the Thekedar to cultivate the land even beyond five years and in case the Thekedar is in occupation of a larger area he becomes an Asami on behalf of the Gaon Sabha. He acquires the status of an Asami with a right to cultivate the land. The provision is also in Section 13 which enables the Collector to permit the Thekedar to cultivate the land even beyond five years and in case the Thekedar is in occupation of a larger area he becomes an Asami on behalf of the Gaon Sabha. All these factors contemplated by Section 13 make it quite distinct from Section 14 and the interpretation of Section 14 cannot in my opinion be based on the provisions of Section 13. 31. An attempt was then made to urge that the expression "legal representative" includes a transferee. This too cannot be accepted. The expression "legal representative" has been defined in Section 3(16) of the Act as follows: "Legal representative has the meaning assigned to it in the Code of civil Procedure, 1908." 'Legal representative' is defined in Section 2(11) of the CPC as follows: Legal representative means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the parties so suing or sued. 32. The expression "legal representative" therefore, has a nexus with the deceased person. Unless a person dies nobody can be his legal representative. The transfer being intervivos can have no nexus with the death of a person and a transferee of the equity of redemption cannot, therefore, be the legal representative of the mortgagor within the meaning of Clause (a) to Sub-section (2) of Section 14 of the Act. 33. There is also no reason to hold that the intention of the legislature u/s 14 of the Act was to confer any rights of cultivation on the executor or administrator of the Sir and Khudkasht-holders and the same cannot be a reason for giving a peculiar interpretation of the term 'legal representative' in Section 14 of the Act. 34. Section 14 of the Act creates a particular class of persons in addition to the various classes of persons mentioned in Section 18 of the Act who acquire bhumidhari rights in respect of the Sir or Khudkasht land. 34. Section 14 of the Act creates a particular class of persons in addition to the various classes of persons mentioned in Section 18 of the Act who acquire bhumidhari rights in respect of the Sir or Khudkasht land. It adds a class of persons with whom the land is settled in case the same was their Sir or Khudkasht before it became subject to a mortgage with possession. 35. In view of the reasons given above it is not necessary to discuss the views expressed by this Court in the cases on the basis of which the reference was made to the Full Bench. 36. I would, answer the question in the negative and hold that a transferee of the equity of redemption from a mortgagor is not included in the expression "mortgagor or his legal representative" in Clause (a) of Sub-section (2) of Section 14 of the UP ZA and LR Act. 37. In accordance with the view of the majority, the answer to the question arising in these cases is that a person to whom the mortgagor of Sir and Khudkasht plots has sold or gifted the right of redemption in the said plots the 'mortgagor' within the meaning of that word in Section 14(2) of the UP ZA and LR Act.