SK. RAFFIQUIDDIN v. SK. SAMSUDDIN — 1971 DIGILAW 187 (ORI)

JUDGMENT : A. Misra, J. - Defendant No. 1 is the Appellant against a confirming judgment in a suit for redemption. 2. The facts, in brief, are as follows: The suit land measuring about 87 decimals which constituted (sic) of the proprietor Sakhi Dei was taken on a permanent lease by Govind Mohanty, deceased brother of Defendant No. 2 in the year 1950. On Govind dying issueless, Defendant No. 2 succeeded to the same as his sole heir. Defendant No. 2 borrowed Rs. 60/- from Defendant No. 1 and Executed a mortgage by conditional sale on 8-10-1956. By a subsequent document dated 15-2-1961, Defendant No. 2 created a second mortgage in respect of 43? decimals of the suit property in favour of the Plaintiff's mother. To repay these two loans, he eventually sold the suit land to the Plaintiff by registered sale deed dated 12-3-1963 for a sum of Rs 326/-. Out of the consideration, Plaintiff retained Re. 160/- for the purpose of repaying the mortgage dues of his mother and Defendant No. 1. The dues of his mother were repaid, but Defendant No. 1 refused to accept his dues when tendered. Therefore, Plaintiff made a deposit u/s 83 of the Transfer of Property Act which was registered as Misc. Case No. 165 of 1963. Defendant No. 1 did not accept the amount so deposited and hence the present suit was filed by the Plaintiff for redemption. 3. Though originally the State of Orissa in whom the estate subsequently vested was impleaded as a Defendant, when the suit was taken up for trial, Defendant No. 3 was expunged as determination of the question of its paramount title as a consequence of vesting under the Estates Abolition Act was considered outside the scope of a suit for redemption. Defendant No. 1 resisted the suit mainly on two grounds. Firstly it was contended by him that the suit transaction not being a mortgage, but an out and out sale, the suit for redemption is not maintainable. Secondly, the original lease in favour of Govind Mohanty in the year 1950 being in contravention of the provisions of Orissa Act 1 of 1948 was void and therefore, on abolition of the estate under the provisions of the Orissa Estates Abolition Act, the suit property as a part of the (sic) vested in the State. Secondly, the original lease in favour of Govind Mohanty in the year 1950 being in contravention of the provisions of Orissa Act 1 of 1948 was void and therefore, on abolition of the estate under the provisions of the Orissa Estates Abolition Act, the suit property as a part of the (sic) vested in the State. Therefore, the Plaintiff cannot claim to have acquired any valid title to the suit land to entitle him due for redemption. 4. The trial Court decreed the suit on the following findings : (I) The suit transaction is a mortgage by conditional sale and not an out and out sale and (2) even if the lease in favour of Govind was invalid being in contravention of the provisions of Orissa Act 1 of 1948 and the property can be said to have vested in the State on abolition of the estate, Defendant so 1 as a mortgagee is estopped from questioning or repudiating the title of the mortgagor or his successor-in-interest. Therefore, the Plaintiff is entitled to the relief of redemption. The lower Appellate Court agreed with the finding of the trial Court that the suit trans Action is a mortgage by conditional sale and held that the mortgagor irrespective of the validity of the lease in favour of Govind had possessory interest in the property which he mortgaged to Defendant No. 1. Accordingly, it dismissed the appeal. 5. The following facts are not disputed : The 87 decimals of land in suit constituted the (sic) of the proprietary estate owned by one Sakhi Dei. Govind, the deceased brother of Defendant No. 2 took it on a permanent lease from the proprietor in the year 1950 and the said lease was in contravention of the provisions contained in Orissa Act 1 of 1948. Since the date of the lease till 8-10-1956, Govind and thereafter Defendant No. 2 remained in possession of the suit land. Defendant No. 1 came into possession of the suit land under Ex. A Executed by Defendant No. 2 on 8-10-1956 and is continuing in possession of the same. The proprietary interest of Sakhi Dei was abolished by issue of a notification in the year 1959 and the consequences as mentioned in Section 5(a) of the Estates Abolition Act followed. On 12-5-1963, Defendant No. 2 executed the sale deed (Ext. A Executed by Defendant No. 2 on 8-10-1956 and is continuing in possession of the same. The proprietary interest of Sakhi Dei was abolished by issue of a notification in the year 1959 and the consequences as mentioned in Section 5(a) of the Estates Abolition Act followed. On 12-5-1963, Defendant No. 2 executed the sale deed (Ext. I) in favour of the Plaintiff and thereunder the latter acquired whatever interest if any, the former had in the suit property. Plaintiff made a deposit of the money due under Ex. A u/s 83 of the T.P. Act which Defendant No. 1 refused to accept. 6. Both the Courts below have given a concurrent finding that Ex. A is a deed of mortgage and not an out and out sale. This finding is not assailable and has not been assailed in this second appeal. 7. It is contended by learned Counsel for Appellant that Defendant No. 2 cannot claim to have possessed any valid tenancy rights in the suit land on account of the invalidity of the lease in favour of Govind which can be said to have saved under the provisions of the Estates Abolition Act. Therefore, the Plaintiff cannot claim to have acquired any valid title on the strength of which he will be entitled to claim redemption and recovery of the suit property from Defendant No. 1, irrespective of absence of title or right in the latter to the suit land. Secondly, it is urged that whatever interest Defendant No. 2 can claim to have possessed by virtue of his possession till 1956, the same was not a tenancy right protected under the Estates Abolition Act, and necessarily when the vesting took place, title to the Property vested absolutely in the State Government, in extinguishment of interest, if any, of Defendant No. 2. Therefore it is argued that the State Government alone will be entitled to recover possession and not the Plaintiff. It has also been argued that by granting the rent receipts (Exs. B and B/1), the State has recognized Defendant No. 1 as a tenant. On the other band, for Respondent No. 1, it is contended that the right of the State to the suit property as against the interest of Defendant No. 2 or his transferee is a matter outside the scope of The suit which is one purely for redemption of a mortgage. On the other band, for Respondent No. 1, it is contended that the right of the State to the suit property as against the interest of Defendant No. 2 or his transferee is a matter outside the scope of The suit which is one purely for redemption of a mortgage. It is not open to the mortgagee to question the right or title of the mortgagor or his successor-in-interest to the property which was given as security for the loan advanced by him. The mortgagee's right is confined to recovery of his dues under The mortgage and nothing else. 8. On The admitted facts as the suit property constituted a part of the (sic) of The intermediary Sakhi Dei and the lease in favour of Govind was in contravention of The provisions of Orissa Act 1 of 1948, prima facie, the lessee cannot be said to have acquired a valid lease hold right to the property by the date of abolition of the estate in 1949. As a result, therefore, the State may claim that the suit property as a part of the (sic) vested in it. At the same time, when Govind and there after Defendant No. 2 were in possession of the disputed land from 1950 to 1956 under an invalid lease, their possession was that of a trespasser. The question is whether a trespasser can be said to possess any interest in the property and whether a trespasser's right can get extinguished under the provisions of the Estates Abolition Act. 9. The position of law seems to be well-settled that a trespasser cannot be considered to be a person devoid of any interest in the property possessed by him. In the decision reported in Banshidhar Mohapatra v. Souri Samal 32 (1967) C.L.T. 601, it was held that a person in possession of land without title has an interest in the property which is heritable and good against all the world excepting the true owner. This interest, unless the true owner interferes, is, transferable. In another decision of this Court reported in Nathuram Sarma and Ors. v. Mewa Devi and Anr. 1971 (1) C.W.R. 424, the same principle has been reiterated as follows: II The position of law is well-settled that a person in possession of land without title has an interest in the property which is heritable and good against all the world excepting the true owner. v. Mewa Devi and Anr. 1971 (1) C.W.R. 424, the same principle has been reiterated as follows: II The position of law is well-settled that a person in possession of land without title has an interest in the property which is heritable and good against all the world excepting the true owner. Such an interest is also transferable. This being the settled principle, though Defendant No. 2 did not possess a valid leasehold title to the suit property, he possessed an interest in the property on account of his continuous possession by the date he Executed Ex. A in favour of Defendant No. 1 and this interest was available to him against everybody except the true owner. Therefore, when the mortgage in favour of Defendant No. 1 was created under Ex. A in 1956, the interest which Defendant No. 2 possessed must be deemed to have been given as security for the loan obtained from him and in pursuance of that trans Action Defendant No. 1 came into and continues in possession. No doubt, subsequent to this mortgage trans Action, the abolition of the estate took place in 1959 and the consequences as enumerated in Section 5(80) of the Orissa Estates Abolition Act ensured. As a result, it may be open to the State to claim recovery of possession of the suit land as part of the (sic). The question for consideration here is not about the right of the State to recover possession of the (sic) but the question is whether it is open to the mortgagee to resist redemption on the ground that the mortgagor had no right in the property or such right belongs to a third party. 10. One the relationship of mortgagor and mortgagee is found to have been created or to be existing, the said relationship cannot be altered or put an end to except by Act of the parties or in accordance with the provisions of law. It is equally well-settled that a mortgagee is estopped from denying the title of the mortgagor to the mortgaged property. It is equally well-settled that a mortgagee is estopped from denying the title of the mortgagor to the mortgaged property. In the decision reported in Bodhan v. Bhundal Singh AIR 1965 All : 309, while holding that a mortgagee is estopped from denying the title of the mortgagor to the mortgaged property at the time of mortgage, it was observed: A mortgagee cannot, by repudiation of the mortgage convert his possession under the mortgage into one adverse to the mortgagor. He is not permitted by his own unilateral Act to bring about an extinction of that legal relationship which was created by the mortgage or reduce the period of limitation prescribed for the redemption of the mortgage. During the period available to the mortgagor for redemption the possession of the mortgagee will always be attributed to the mortgage despite any assertion by him of a claim hostile to the mortgagor. In the decision reported in C.K. Setty v. Abdul Khadar AIR 1956 Mys. 14, it was held: It is not permissible to a mortgagee or a transferee of his rights to impeach the title of the mortgagor's properties. x x x. A mortgagee cannot resist a claim for redemption on the ground that the mortgagor has no title to the property. So also, in the decision reported in Appu v. Munusami AIR 1962 Mid. 395, it was held: A mortgagee who has been put in possession by the mortgagor pursuant to a mortgage is estopped, so long as the relationship between them continues, from denying the mortgagor's title to the property. Irrespective of the defect, if any, of the title in the mortgagor, when a mortgagee has accepted the security for the advance made by him, it is not open to him to disclaim the right which he has taken as security and refuse to allow redemption when the money advanced is tendered or paid to him. In the present case admittedly, Defendant No. 1 did not possess or acquire any other right in the suit property before Ex. A except that which was given to him by way of security for the loan which he advanced to Defendant No Therefore, he is estopped from disclaiming the right of Defendant No. 2 whatever that right be and resist redemption on that ground. A except that which was given to him by way of security for the loan which he advanced to Defendant No Therefore, he is estopped from disclaiming the right of Defendant No. 2 whatever that right be and resist redemption on that ground. In this view of the matter, irrespective of the right of Defendant No. 2 or his transferee to the suit property as against the State, Defendant No. 1 is estopped from disclaiming the right which was mortgaged to him by Defendant No. 2. Hence, I agree with the Courts below that the Plaintiff is entitled to a decree for redemption. 11. In the result, I find no merit in this appeal which is accordingly dismissed with costs.