Nafisa Khatoon v. Nand Kishore — 1981 DIGILAW 186 (ALL)

ORDER Deoki Nandan, J. - This case was originally filed as a second appeal. It arises from a proceeding for redemption of a mortgage of three shops situate within the Municipal Limits of Budaun, under Section 12 of the U.P. Agriculturists Relief Act, 1934. 2. The property was mortgaged on 17th August, 1888 by one Qamrul Islam, for securing the sum of Rs. 300/-. The mortgage-deed stipulated that the property was mortgaged with possession for a period of 20 years; that the rate of interest agreed upon was Rs. 2/- per cent per mensem and the rental income from the property was Rs. 1/4/- per month and the mortgagor agreed to pay the deficiency in the amount of interest along with mortgage money, while at the same time it was said that the three shops were at that time in a dilapidated condition and the mortgagee will have the right to get them reconstructed entirely a new and whatever amount was spent thereon would also be payable with interest at 2 per cent per mensem along with the mortgage money at the time of the redemption of the mortgage, and the property was mortgaged to secure the same, but the person and the other property of the mortgagor would be free from any liability to pay the mortgage money. Lastly it was said that the mortgagee will be entitled to the rental income and that the mortgagor will have no claim against it. It was then stipulated that until the expiry of the period of mortgage the mortgagor will not claim redemption of the property and after the expiry of the period the entire amount of the mortgage money, the expenses on constructions and the interest will be paid by mortgagor to the mortgagee for redeeming the property and that the property will not be redeemable except on payment of the entire amount. 3. The plaintiff-respondent is the transferee of the mortgagor and the defendant-appellant is the transferee of the mortgagee. The original defendants Nos. 2 to 4 were the legal representatives of the mortgagor. The defendant No. 2 is respondent No. 2; defendant No. 4 is respondent No. 10; and defendants Nos. 3 to 9 and 11 appear to be the legal representatives of defendant No. 3. 4. The original defendants Nos. 2 to 4 were the legal representatives of the mortgagor. The defendant No. 2 is respondent No. 2; defendant No. 4 is respondent No. 10; and defendants Nos. 3 to 9 and 11 appear to be the legal representatives of defendant No. 3. 4. The proceeding was originally instituted by filing an application under Section 12 of the U.P. Agriculturists Relief Act, 1934 in the Court of the Munsif, Budaun on 12th April, 1955. On 2nd February, 1957 it was ordered to be returned by the Court of the Munsif on account of want of jurisdiction, for presentation in a Court of competent jurisdiction; and the application was actually returned on 12th February, 1957. It was then presented before the Collector, Budaun, on 1st. February, 1958, who sent it to the Sub-Divisional Officer, Budaun by an order of that date. 5. In defence, the mortgage and the terms thereof were admitted but it was asserted that after the death of the original mortgagee, his widow came into possession and under the terms of the mortgage deed, she re-constructed the property anew and incurred an expenditure of Rs. 500/- thereon in the year 1906: that the rent recovered was Rs. l/4/- only so long as the property was in its original dilapidated condition but after its re-construction, the amount of rent realised became Rs. 5/- per month. It was then alleged that the widow of the original mortgagee sold the property on 19th November, 1923 to the answering defendant who was the appellant in this Court, but having died, is now represented by her legal representatives. The amount of rent realised was alleged to have been enhanced from Rs. 5/- to Rs. 10/- per month in the year 1958. It was claimed that the sum of Rs. 10/- per annum was the average spent on repairs but that apart, the sum of Rs. 8682/- up to the year 1955 was due on accounting. The details of the account given at the foot of the written statement which is dated 16th July, 1959 show that interest has been claimed at the rate of 2 per cent per mensem on the original mortgage money of Rs. 300/- after adjusting the rent at Rs. 1/4/- per month up to the year 1905, and from the year 1906 on the sum of Rs. 300/- after adjusting the rent at Rs. 1/4/- per month up to the year 1905, and from the year 1906 on the sum of Rs. 800/- at the rate of 2 per cent per mensem after adjusting the rent of Rs. 5/- per month. No allowance appears to have been made for the admitted increase in rent in the year 1948 from Rupees 5/- to Rupees 10/- per month. The written statement is dated 16th July. 1959 and the interest appears to have been worked out up to the end of 1959 and the total amount due up to the end of the year 1959 has been worked out therein at the figure of Rupees 8814/-. The other pleas raised in the defence were that the plaintiff was not the owner of the property and had no right to sue as transferee of the property and even if he was held entitled to redeem the mortgage he could not be allowed to do so and was not entitled to the benefit of the U.P. Agriculturists Relief Act, 1934 or the U.P. Debt Redemption Act, 1940; that all the heirs of the original mortgagor had not been impleaded and the suit was bad for nonjoinder of necessary parties; that the suit had been undervalued on account of the non-inclusion of the amount of Rs. 500/- spent on reconstruction, that the plaintiff was bound by the terms of the mortgage deed; that the rate of interest was not excessive; that the Court had no jurisdiction; that the whole amount of the mortgage money was due and no part of it was paid up and that the suit was barred by time. 6. The following were the issues originally framed by the Court of the Sub-Divisional Officer; 1. Whether this Court has jurisdiction to try the suit? 2. Whether the plaintiff is the mortgagor proprietor of the property in suit? 3. Whether the plaintiff is entitled to file the present suit? 4. Whether the entire mortgage money has been satisfied by the usufruct of the property? If not its effect? 5. Whether the rate of interest is exhorbitant and penal ? 6. Whether the suit is within time? 7. Whether the suit is bad for nonjoinder of all heirs of Qamral Islam ? 8. Whether the suit is undervalued. If so its effect? 9. To what relief if any the plaintiff is entitled? If not its effect? 5. Whether the rate of interest is exhorbitant and penal ? 6. Whether the suit is within time? 7. Whether the suit is bad for nonjoinder of all heirs of Qamral Islam ? 8. Whether the suit is undervalued. If so its effect? 9. To what relief if any the plaintiff is entitled? By his judgment dated 7th December, 1960, the Additional Sub-Divisional Officer, Budaun, held on issue No. 1 that he had jurisdiction to entertain the case as the principal amount secured was less than Rs. 500/-, but on issues Nos. 3 and 6 he held that the plaintiff was not an agriculturist on the date when the application was filed and that the application was barred by time. On appeal, the Court of the Second Temporary Civil and Sessions Judge, Budaun held by his judgment dated 28th March, 1962 that the application was filed within limitation and the finding on the question whether the plaintiff was an agriculturist was also set aside for re-consideration by the trial Court. The matter was next disposed of by the Sub-Divisional Officer, Budaun, by his judgment dated 31st October, 1962. He held that the plaintiff was not an agriculturist and was accordingly not entitled to present the suit and dismissed the same. On appeal from that judgment the Court of the III Temporary Civil and Sessions Judge, Budaun, by his judgment dated 15th May, 1953, set aside the finding of the Sub-Divisional Officer on issues Nos. 2 and 3 and the judgment dismissing the suit, and remanded it for a fresh trial with the direction that a specific issue should be framed on the question whether the original mortgagor and the plaintiff was an agriculturist within the meaning of the Debt Redemption Act and the Agriculturists Relief Act, on the relevant dates, that is, on the date of the mortgage and on the date of making the application under Sec. 12 of the U.P. Agriculturists Relief Act. The case was next disposed of by the judgment dated 12th May, 1964 of the Sub-Divisional Officer. Budaun, after framing two new issues Nos. The case was next disposed of by the judgment dated 12th May, 1964 of the Sub-Divisional Officer. Budaun, after framing two new issues Nos. 11 and 12 as directed by the appellate Court's judgment dated 15th May, 1963, and this time the suit was decreed for possession being given to the plaintiff without his being required to pay anything towards the mortgage money as the whole of it was held to have been paid off. The defendant mortgagee appealed from that judgment and the appeal was this time, dismissed by the Court of the Civil Judge, Budaun, by judgment dated 4th March, 1966. 7. As observed above, the present case was originally filed and admitted as a second appeal but when it came up for hearing, it was found that no second appeal lay from an appellate order under Section 23 of the U.P. Agriculturists Relief Act as it was expressly barred by sub-section (2) thereof. On an application made by the appellant, the memorandum of appeal was thereafter permitted to be amended and the case converted into a Civil Revision filed on the date on which the second appeal was filed in this Court in the year 1966. 8. Mr. R.H. Zaidi, learned counsel for the defendant-appellant (mortgagee) raised before me the following contentions : firstly that the U.P. Agriculturists Relief Act, 1934, stood repealed by the U.P. Zamindari Abolition and Land Reforms Act; secondly that in any case neither the plaintiff-mortgagor nor his predecessor-in-interest could be said to be an agriculturist within the meaning of the U.P. Agriculturists Relief Act, 1934, more particularly for purpose of redeeming property other than agricultural land, as in the present case, under Section 12 of that Act; and thirdly that the claim was barred by limitation. He further urged that even if every thing was found against him neither of the two Courts below have considered the usurious nature of the rate of interest, nor have they examined the accounts or determined the question whether the mortgage money or any part thereof could be said to have been paid off by the usufruct of the mortgaged property, and if not, what amount was due to the mortgagee before ordering redemption of the property. 9. On the first point raised by Mr. 9. On the first point raised by Mr. Zaidi, the U.P. Agriculturists Relief Act, 1934 was repealed by Section 339 (a) of the U.P.Z.A. and L.R. Act, 1950, read with List I of Schedule III to that Act. But, the provisions of the U.P.Z.A. and L.R. Act, 1950, did not extend to the whole of Uttar Pradesh, inasmuch as, by sub-section (2) of Section 1, the areas included in a Municipality on 7-7-1949 were specifically excluded from the extent of the applicability of the Act. Further, even the repeal of enactments under Section 339 of the U.P.Z.A. and L.R. Act, 1950 was in respect of such areas to which the provisions of the U.P.Z.A. and L.R. Act, 1950 applied with effect from the date of vesting. The property in suit is situate within the Municipal Limits of the town of Budaun. The U.P. Z.A. and L.R. Act did not extend to that area and Zamindari was not abolished therein. The U.P. Agriculturists Relief Act, 1934, could not therefore, be said to have been repealed in its application to the property in suit situate as it was within the Municipal limits of the town of Budaun. 10. But, in the course of considering the question whether the plaintiff's predecessor-in-interest, who had originally mortgaged the property in suit, and plaintiff himself, were agriculturists, within the meaning of U.P. Agriculturists Relief Act, 1934, on the date of the mortgage and on the date of the suit respectively, some difficulty was experienced in applying the definition of an 'agriculturist' by reason of the abolition of Zamindari and the changes brought about in the law of land tenures under the provisions of the U.P. Z.A. and L.R. Act. I am not mentioning the impact of the U.P. Urban Areas Z.A. and L.R. Act, 1956 (1957) inasmuch as that Act was not promulgated on 12-4-1955 when the application under Section 12 was first presented in the Court of Munsif, and even on 1-2-1958, when it was again presented before the Collector, Budaun, the Agricultural areas were not demarcated and Zamindari was not abolished in respect of them within the Municipal Limits of the town of Budaun. 11. 11. An 'Agriculturist' is defined in clause (2) of Section 2 of the U.P. Agriculturists Relief Act, 1934 to mean- "(a) a person who, in districts not subject to the Benares Permanent Settlement Regulation, 1975, pays land revenue not exceeding Rs. 1,000/- per annum; or (b) a person who, in districts subject to the Benares Permanent Settlement Regulation, 1795, pays a local rate under Section 109 of the District Boards Act, 1922, not exceeding Rs. 120 per annum; or (c) a person holding land free of revenue, who pays a local rate under Section 109 of the District Boards Act 1922, not exceeding Rs. 120 per annum or (d) in Oudh, an under-proprietor holding a sub-settlement of land the revenue of which does not exceed Rs. 1.000/- per annum, or (e) a thekedar who holds a theka of land the revenue of which does not exceed Rs. 1000/- per annum; or (f) a person other than a thekedar or an under-proprietor in Oudh holding a sub-settlement, who pays rent for agricultural land not exceeding Rs. 500/- per annum; or (g) a person holding land free of rent, the area of which does not exceed 80 acres; or (h) a person ordinarily living outside the limits of any municipality who belongs to any of the classes of persons mentioned in Schedule I: Provided that in Sections 2 (10) (a), 3, 4, 5, 8 and Chapters IV and V an agriculturist means also a person who would belong to a class of persons mentioned in parts (a) to (g) of this sub-section, if the limits of land revenue, local rates, rent and area mentioned in these parts were omitted: Provided also that no person shall be deemed to be an agriculturist if he is assessed to income-tax, which, if he belongs to any of the classes (a) to (e) above, exceeds the local rate payable on the land which he holds, or, if he belongs to class (f) above, exceeds 65 per cent of his rent, or, if he belongs to class (g) above, exceeds Rs. 25: Provided further that if a non-agriculturist joins with an agriculturist in any transaction of loan, save for the purpose of adding his name as security, the agriculturist shall not be considered as such for the purpose of that transaction. 25: Provided further that if a non-agriculturist joins with an agriculturist in any transaction of loan, save for the purpose of adding his name as security, the agriculturist shall not be considered as such for the purpose of that transaction. Explanation I - In this sub-section "revenue" and "rent" mean revenue and rent payable irrespective of the remission that may be granted for the slump in prices or for agricultural calamities. Explanation II - In the case of members of a joint Hindu family or joint owners or joint tenants, each member or owner or tenant shall be considered to be an agriculturist for the purposes of Chapters II except Sections 3, 4, 5 and 8, III and VI, whose share or interest in revenue, local rate or rent or the rent-free land, as the case may be, does not respectively exceed the aforesaid limits. Explanation III - In Oudh an under proprietor of specific plots not holding a sub-settlement and paying rent not exceeding Rs. 500/- per annum is an agriculturist. Explanation IV - The word "rent" in this sub-section includes, in cases where rent is payable in kind, the money equivalent thereof recorded in the Khatauni of the previous year. Explanation V - The word "rent" in this sub-section shall not include zaid mutalba or any amount paid in excess of the rent legally payable. Explanation VI - When a person pays both rent and revenue, he shall not be deemed to be an agriculturist for the purposes of Chapters II (except Secs. 3, 4, 5 and 8), III and VI, if the total of the rent and revenue annually "payable by him exceeds Rs. 1,000/- or if he is excluded from the definition of agriculturist under any of the clauses (a) to (g). Explanation VII - When a person, holding land in districts subject to the Benaras Permanent Settlement Regulation, 1795, or holding land free of revenue, pays both rent and local rate, he shall not be deemed to be an agriculturist if the total of the rent and local rate annually payable by him exceeds Rs. 500/-. Illustrations - (i) a person who pays Rs. 800/- as revenue and Rs. 400/- as rent is not an agriculturist as the total of rent and revenue exceeds the limit of Rs. 1,000/-. (ii) A person who pays Rs. 200/- as revenue and Rs. 600/- as rent. 500/-. Illustrations - (i) a person who pays Rs. 800/- as revenue and Rs. 400/- as rent is not an agriculturist as the total of rent and revenue exceeds the limit of Rs. 1,000/-. (ii) A person who pays Rs. 200/- as revenue and Rs. 600/- as rent. He comes under clause (a) but not under clause (f); he is not therefore an agriculturist." Only Zamindars or land-holders could be said to be contemplated under Cls. (a) to (d). Clause (e) speaks of a Thekedar. Clause (f) speaks of a tenant who paid rent for agricultural land not exceeding Rs. 500/- per annum and Cl. (g) of a tenant holding land free of rent, but the area of which did not exceed 80 acres. Clause (h) speaks of persons ordinarily living outside the limits of any Municipality. 12. The plaintiffs predecessor-in-interest Qamrul Islam has been taken to be an agriculturist on the date of the mortgage, which was in the year 1888. on the basis of an extract of Khewat for 1272 F wherein he was recorded as a Zamindar. Although, 1272F was earlier than the year 1888 A.D. and one does not know whether Qamrul Islam continued to be recorded as Zamindar in the year 1888 A.D. it may be assumed that he continued to be a Zamindar and was, therefore, an agriculturist on the date of the mortgage within the meaning of clause (a) in as much as it has not been shown that he paid land revenue exceeding Rs. 1000 per annum. But the plaintiff, Nand Kishore was not a Zamindar or a landholder who paid any revenue as such on the date of application under Section 12 so as to be an agriculturist within the meaning of clause (a) if the amount of revenue paid did not exceed Rs. 1000 per annum. He has been held to be an agriculturist on the basis of an entry in the Khatauni for 1369F which showed that he was recorded as a Sirdar. 1369F would be equivalent to the year 1961-52. An analysis of the extract of Khatauni shows that it related to village, Qashba, Pargana, Tehsil and District Budaun. It is not clear whether the area to which this entry relates was within the Municipal limits of the town of Budaun. 1369F would be equivalent to the year 1961-52. An analysis of the extract of Khatauni shows that it related to village, Qashba, Pargana, Tehsil and District Budaun. It is not clear whether the area to which this entry relates was within the Municipal limits of the town of Budaun. The period of cultivation shown against the first 7 plots is since 1367F and the endorsements in the last column against many of these plots show that the name of the plaintiff was struck off in respect of them under the orders of the consolidation authorities. Only in respect of the last three plots Nos. 2507, 2508 and 2511 (Minjumla) the period of cultivation shown is since before 1369F and there is no endorsement of any orders of the consolidation authorities in respect of them. It may, therefore, be assumed that the plaintiff was a Sirdar of plots Nos. 2507, 2508 and 2511 and that the period of his cultivation dated back to before 1360F. The amount of revenue payable for these plots is shown to be Rs. 4.58 paise. The word 'Laggan' is written in the heading, but it is well known that Sirdars are not tenants but are tenure-holders and do not pay rent but pay land revenue to the Government under the provisions of the U.P. Z.A. & L.R. Act. There is another extract of triennial Khatauni for 1366 to 1368F. So far as this paper is concerned, the plaintiff was recorded as a Sirdar of two plots of land in village Bhagora, Pargana Salempur, Tehsil Datganj District Budaun for the first time under an order dated 23-9-1958 made by the Judicial Officer, Dataganj in Case No. 260. Since the date of this order is after the date on which the application under Section 12 was presented by the plaintiff, this entry could be of no avail. There is yet another entry of the Khewat 1359F of village Bhagora, Pargana Salempur, Tehsil Dataganj, District Budaun, which shows that the plaintiff was a cosharer in the Zamindari of that village. But, that too can avail him nothing because Zamindari was already abolished on the date when the application under Section 12 was filed. 13. There is yet another entry of the Khewat 1359F of village Bhagora, Pargana Salempur, Tehsil Dataganj, District Budaun, which shows that the plaintiff was a cosharer in the Zamindari of that village. But, that too can avail him nothing because Zamindari was already abolished on the date when the application under Section 12 was filed. 13. The question is whether, by virtue of being recorded as a Sirdar in 1369F in respect of these plots situate in Qasba, Pargana, Tehsil and District Budaun, the plaintiff could be said to be an agriculturist within the meaning of the definition of that term. He was a person who paid land revenue, and Mr. Y.S. Saxena for the plaintiff-respondent urged before me that he must, therefore, be deemed to be an agriculturist within the meaning of clause (a) as the amount of revenue paid was only Rs. 4 and odd. According to Mr. Zaidi, on the other hand, a tenure-holder of the kind of a Sirdar could not have been in the contemplation of the Legislature when the U.P. Agriculturists Relief Act, 1934, was enacted in the year 1934, for this class of tenure-holders came into existence for the first time on the abolition of the Zamindari on 1-7-1952 and simultaneously the U.P. Agriculturists Relief Act, 1934, was also repealed in those areas where such a class of tenure-holders was brought into existence. 14. Clause (a) contemplates a person paying land revenue not exceeding Rs. 1000 per annum in districts not subject to the Benaras Permanent Settlement Regulation, 1795. On the abolition of the Zamindari on 1-7-1952 all the earlier settlements of the land ceased and there was no district which may be subject to the Benaras Permanent Settlement Regulation, 1795, and therefore, it could not be said that there was any district subject to the Benaras Permanent Settlement Regulation, 1795. It appears to me that Sirdars or other tenure-holders created by the U.P. Z.A. & L.R. Act could not have been in the contemplation of the Legislature while enacting the definition of an agriculturist under clause (2) of Section 2 of the U.P. Agriculturists Relief Act, 1934. It appears to me that Sirdars or other tenure-holders created by the U.P. Z.A. & L.R. Act could not have been in the contemplation of the Legislature while enacting the definition of an agriculturist under clause (2) of Section 2 of the U.P. Agriculturists Relief Act, 1934. The fact that the U.P. Agriculturists Relief Act, 1934, was not repealed by the U.P. Z.A. & L.R. Act in the Municipal areas, could possibly lead to the result that so long as Zamindari, was not abolished in the Municipal areas, a person, who was a Zamindar or a landholder or a Thekedar, of the kinds defined by cl. (a) to (e) or a tenant of the kind defined by cls. (f) & (g) of land within the Municipal area could be deemed to be an agriculturist for the purposes of that Act. But, the fact that the Act continued to remain in operation in the Municipal areas could not possibly lead to the result that in respect of non-agricultural property, situate in Municipal areas, a person who was neither a zamindar nor a tenant, of any of the kinds defined by clauses (a) to (g), could be deemed to be an agriculturist by reason of the fact that he carried on agriculture and was a tenure-holder of agricultural land in some part of Uttar Pradesh. A person who did not ordinarily reside within the Municipal area could not take advantage of clause (h) by reason of his belonging to a class of persons mentioned in Schedule I, because the necessary nexus between the area where he resided and the area to which the Act extended, was wanting. For instance, it would be difficult to say that a person, who was a tenant or a zamindar in some part of the country outside Uttar pradesh, could claim to be an agriculturist within the meaning of any of the clauses (a) to (g) of clause (2) of Section 2 of the U.P. Agriculturists Relief Act, 1934, on account of the want of necessary territorial nexus. I am, therefore, of the view that the plaintiff could not be said to be agriculturist within the meaning of the U.P. Agriculturists Relief Act, 1934, on the date of the application made by him under Section 12 of that Act. 15. I am, therefore, of the view that the plaintiff could not be said to be agriculturist within the meaning of the U.P. Agriculturists Relief Act, 1934, on the date of the application made by him under Section 12 of that Act. 15. This is sufficient for the decision of the present case and I need not, therefore, enter into the question whether the rate of interest was usurious, or whether on taking of the accounts the mortgage money and the cost of the improvements made in the mortgaged property could be said to have been paid off completely by the usufruct of the mortgaged property. 16. The result is that the proceedings initiated by the application under Section 12 of the U.P. Agriculturists Relief Act. 1934, must be dismissed as not maintainable. I would, however, and, in the interest of justice, that this may not be an end of the plaintiff's right to redeem the mortgage, although it is now about 93 years old, for the proceeding was initiated before the suit for redemption of mortgage had become barred by the 60 years period of limitation prescribed by the Indian Limitation Act, 1908, inasmuch as the right to sue for redemption accrued not when the deed of mortgage was executed, but on the expiry of the period of 20 years in the year 1908. The plaintiff may, therefore, yet have a remedy by way of a regular suit for redemption of the mortgage and that suit could possibly be said to be within limitation with the aid of Section 14 of the Limitation Act, 1963. subject, of course, to the impact of reduction of the period of limitation to 30 years and the provisions of Section 29 (2) thereof. 17. I therefore allow the revision, set aside the order under revision and dismiss the application, made under Section 12 of the U.P. Agriculturists Relief Act, 1934, but reserve to the plaintiff the liberty to institute, if he is so minded, a suit for redemption of the mortgage, or a suit for possession of the mortgaged property, technically so called, under Section 62 of the Transfer of Property Act, in a court of competent jurisdiction in accordance with law. 18. In the circumstances, the parties shall bear their own costs throughout.