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2017 DIGILAW 569 (JK)

Godawari Devi v. Savitri Devi

2017-08-08

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J 1. In this intra court appeal, the appellants have assailed the validity of order dated 15.03.2012 passed by learned Single Judge of this Court by which writ petition preferred by the original petitioner, namely, Karnail Singh was dismissed. 2. In order to appreciate the issues involved in this appeal, we set out facts, which are stated here under:- One Jagan Nath was in need of Rs. 1,000/-. Therefore, on receipt of the aforesaid amount from one Inder Singh and Karnail Singh, he executed a document titled “Mustajri Nama” in favour of the aforesaid person in the year 1953, which was registered with the Sub- Registrar, Jammu in the year 1953 itself. Under the aforesaid document, possession of land admeasuring 40 kanal and 8 marlas situate at village Panjore was handed to the aforesaid Inder Singh and Karnail Singh for a period of 20 years commencing from Kharief 1953 to Kharief 1973. The original petitioner and the legal representatives of the deceased Inder Singh, who died in the meanwhile, did not hand over possession of the land to respondent No. 1 after expiry of the period mentioned in the document titled “Mustajrinama.” The aforesaid Jagan Nath sold 8 kanals of land to respondent No. 1 vide sale deed dated 12.10.1964. The dispute between the appellant namely legal representatives of Karnail Singh and respondent No. 1 pertains only to 8 kanals of land in this appeal. Since on expiry of the period prescribed in the document titled “Mustajri-Nama” the original petitioner Karnail Singh and legal representatives of Inder Singh refused to hand over possession, thereupon respondent No. 1 filed a civil suit before the Court of City Judge, Jammu seeking relief of possession of 8 kanals of land. The original petitioner, Karnail Singh contested the suit in which the jurisdiction of the civil court to entertain the same was challenged, inter-alia, on the ground that the suit is barred under the provisions of the Jammu & Kashmir Agrarian Reforms Act, 1976 (hereinafter referred to as “the Act). The City Judge, Jammu vide order dated 28.09.1976, inter-alia, held that relationship between the parties was that of a landlord and tenant and the agreement between them was a fixed term tenancy, therefore, in view of the provisions of the Act, it had no jurisdiction to entertain the suit. Accordingly, the plaint was retuned for presentation before the proper Forum. The City Judge, Jammu vide order dated 28.09.1976, inter-alia, held that relationship between the parties was that of a landlord and tenant and the agreement between them was a fixed term tenancy, therefore, in view of the provisions of the Act, it had no jurisdiction to entertain the suit. Accordingly, the plaint was retuned for presentation before the proper Forum. 3. The respondent No. 1 challenged the order before the District Judge, Jammu, who modified the order passed by the trial Court and directed that instead of directing return of the plaint, the suit ought to have been transferred to the Collector, Agrarian Reforms, Jammu to determine the suit between the parties. The Collector by an order dated 14.11.1983, inter-alia, held that the document in question, namely “Mustajri-Nama” is a mortgage and after Kharief 1973 the original petitioner namely Karnail Singh was a trespasser and was liable to be evicted from the land admeasuring 8 kanals. The aforesaid order was upheld by the Joint Financial Commissioner (Agrarian Reforms), exercising the powers of Commissioner under the Act by order dated 22.07.1986, inter-alia, holding that the original petitioner was not the tenant of the respondent and the relationship of landlord and tenant did not exist between the parties. It was further held that after expiry of the period mentioned in the document in question, the original petitioner was liable to be evicted under Section 27 of the Act. Accordingly, the appeal was dismissed. 4. Being aggrieved, the original petitioner filed a revision before the J&K Special Tribunal, Jammu, which was dismissed vide order dated 10.06.1988, inter-alia, on the ground that no ground for interference with the concurrent findings of fact recorded by the authorities is made out and on the crucial date i.e. in Kharief 1971, relationship of landlord and tenant did not exist between the parties. Being aggrieved, the original petitioner filed OWP No. 1027/1988 before this Court. The learned Single Judge vide order dated 12.12.2000, inter-alia, held that the transaction between the parties was a lease and not mortgage and set aside the orders passed by the authorities under the Act. The aforesaid order was challenged by respondent No. 4 before the Division Bench of this Court in LPAOW No. 9/2001, which was decided vide order dated 22.02.2011. The aforesaid order was challenged by respondent No. 4 before the Division Bench of this Court in LPAOW No. 9/2001, which was decided vide order dated 22.02.2011. The Division Bench set aside the order passed by the learned Single Judge and for returning findings, framed issues, which are reproduced below:- “(i) Whether concurrent findings recorded by all the three courts can be disturbed by the writ court? (ii) Whether writ court or civil court is within its jurisdiction and competence to decide the issue relating to landlord and tenant-tenancy while keeping in view the provisions of Act and the Jammu and Kashmir Tenancy Act, 1980 (1923 A.D.)? (iii) What was the intention and in what background the document was executed by the executant - Jagan Nath? (iv) Whether the amount which was already received by Jagan Nath-executant from respondent was a debt? (v) Whether dictionary meaning of the word Mustajir can turn the whole deed into a lease deed without having regard to the intention of the parties as well as to the concurrent findings recorded by the trial court, appellate court and revisional court?” 5. Thereafter learned Single Judge vide order dated 15.03.2012, inter-alia, held that from the perusal of the terms and conditions of the document in question, it is evident that respondents predecessor did not have any intention to transfer any right in the land to the original petitioner to use the land as such in exercise of such right. It was further held that findings recorded by the three Forums under the Act that the relationship between the parties was that of mortgagor and mortgagee and the deed of “Mustajri Nama” was usufructuary mortgage does not suffer from any error of law. Accordingly, the writ petition preferred by the original petitioner was dismissed. In the aforesaid factual backdrop this intra court appeal has been filed. 6. Mr. Sunil Sethi, learned senior counsel appearing for the appellant while inviting attention of this Court to Section 58(d) of the Transfer of Property Act, Svt. 1977 submitted that the learned Single Judge as well as the authorities under the Act ought to have appreciated that the document in question could not be termed as mortgage as there was no reference in the aforesaid document that the mortgagor shall be entitled to receive possession of the land in question on payment of the mortgage money. 7. 1977 submitted that the learned Single Judge as well as the authorities under the Act ought to have appreciated that the document in question could not be termed as mortgage as there was no reference in the aforesaid document that the mortgagor shall be entitled to receive possession of the land in question on payment of the mortgage money. 7. It is also submitted that the aforesaid document nowhere mentions that the mortgagor was entitled to receive rent/profit in lieu of interest on mortgage money. Therefore, the document in question could not have been treated as usufructuary mortgage. Learned senior counsel has also taken us through Section 58 of the Transfer of Property Act and section 105 of the aforesaid Act and has drawn a distinction between the mortgage and the lease. It is further submitted that the order passed by the Collector is cryptic in nature and suffers from the vice of non-application of mind, inasmuch as no reasons have been assigned and since the suit itself was transferred before the Collector under the Act, therefore, the Collector ought to have framed the issues and should have tried the suit transferred to it as a civil suit. It is also submitted that the document in question is a lease and since the original petitioner was in cultivating possession in Kharief 1971, therefore, he is entitled to the benefit of Sections 4 and 8 of the Act. 8. It is urged that the learned Single Judge while deciding the writ petition has not dealt with the issue while interpreting the document in question as to what would be the consequence if it is signed by only one party. It is also submitted that in the instant case the signatures of the original petitioner were also obtained at the time of registration of the document by the registering authority, even though same did not appear on the document in question, which amounts to compliance of Section 59 of the Act. Alternatively, it is submitted that even if the document in question is considered as usufructuary mortgage the same would not be covered under Section 10 of the Act and for ascertaining the nature of the document, intention of the parties is required to be seen. Alternatively, it is submitted that even if the document in question is considered as usufructuary mortgage the same would not be covered under Section 10 of the Act and for ascertaining the nature of the document, intention of the parties is required to be seen. In support of his submissions learned senior counsel has referred to a decision of the Supreme Court in the case of Mangala Kunhimina Umma vs. Puthlyaveettil Paru Amma, 1971 (1) SCC 562 and has invited our attention in particular to paragraph Nos. 12 to 18 of the judgment. 9. On the other hand, learned counsel for respondent No. 1 submitted that the authorities under the Act, namely, Collector, Commissioner, Agrarian Reforms and the Jammu & Kashmir Special Tribunal have recorded the finding of fact that the document in question is a usufructuary mortgage, which does not suffer from any perversity or illegality. It is further submitted that the document in question is a mortgage deed as the document has been executed by the mortgagor himself as required under Section 59 of the Transfer of Property Act, 1977 (1920 A.D.), whereas the lease is required to be signed by both the parties. It is also submitted that since the document in question was a mortgage, therefore, in view of explanation (vi) to Section 2(12) of the Act, the mortgagor would be deemed to be in personal cultivation in Kharief 1971. It is submitted that once the proceedings are transferred, the same have to be summarily tried in terms of Section 27 of the Act. It is also argued that the authorities under the Act have rightly held that the application under Section 27 of the Act would lie to evict the appellants and it is also pointed out that in compliance of the order passed by the authorities under the Act, respondent No. 4 has already put in possession of the land in question. In support of his submissions, leaned counsel for respondent No. 1 has referred to a decision of the Supreme Court in the case of Thakur Singh vs. Ram Baran Singh, (1972) 2 SCC 740 . 10. We have considered the submissions made by learned counsel for the parties and have perused the records. Lease and Mortgage are species of the same genus viz. the transfer of property. 10. We have considered the submissions made by learned counsel for the parties and have perused the records. Lease and Mortgage are species of the same genus viz. the transfer of property. Both of them bring about transfer of property, but with a substantial change as to the nature of disposition. The principal objective of a mortgage is to provide security for repayment of amount, whereas the one under lease is that the owner of an item of immovable property permits another to use it on payment of rent. Except in the case of usufructuary mortgage and mortgage through conditional sale, the possession of the property continues to be with the mortgagor. 11. The Supreme Court in Puzhakkal Kuttapu vs. C. Bhargavi, AIR 1977 SC 105 and others has held that when there are some mixed elements in an instrument disclosing features of mortgage as well as of lease, the Court will have to find out the predominant intention of the parties executing the document viewed from the essential aspect of the reality of the transaction. It has further been held that in construing a document it is always necessary to find the intention of the party executing it and the intention has to be gathered from the recitals and the terms in the entire document and from the surrounding circumstances. It has also been held that the most essential ingredient of a mortgage is that the transfer of the property has to be made as a security for the debt. 12. In Kaveripatnam Subbaraya Setty Annaiah Setty Charities Trust vs. S.K. Viswanatha Setty, (2004) 8 SCC 717 , it has been held that whether the transaction is a lease or a mortgage contemplate that the name given to the document is not conclusive and the question has to be decided with reference to the predominant intention of the parties as gathered from the recitals and the terms of the documents and the surrounding circumstances including conduct of the parties. It has further been held that in case of a mortgage, there is a transfer of interest to secure repayment of debt and in the case of a lease, there is a transfer of a right to enjoy the property. It has further been held that in case of a mortgage, there is a transfer of interest to secure repayment of debt and in the case of a lease, there is a transfer of a right to enjoy the property. Similar view has been taken by the Supreme Court in the cases of Chennammal vs. Munimalaiyan and Others, (2005) 13 SCC 71 and Sadaram Suryanarayana and Another vs. Kalla Surya Kantham and Another, (2010) 13 SCC 147 . 13. In the backdrop of aforesaid well settled legal principles, the facts of the case in hand may be examined. For the following reasons, in our considered opinion, the document in question is a mortgage and is not lease:- (i) From the close scrutiny of the document, it is evident that it contains the most essential ingredient of a mortgage, namely, that the transfer of the property has been made as security for the debt, which is evident from the recitals contained in the document, which are reproduced below for facility of reference:- “As I need money for payment of arrears and current land revenue, for which reason I have received an advance of Rs. 1,000/- and given all my land on Mustajri to Shri Inder Singh S/o Kirpa Ram and Karnail Singh S/o Budhi Singh caste Chib Rajput R/o village Deva, Tehsil Bhimber, at present village Dub Ditta, Tehsil Jammu in equal share each, for a period of twenty years.” “6. After expiry of the period of Mustajri, the entire Mustajri amount of one thousand rupees shall be deemed extinguished and I shall be entitled to get possession of the land back without payment of any amount.” Thus, the aforesaid recital leaves no doubt that the document contains essential ingredient of mortgage as it has been executed to secure the repayment of debt. (ii) The aforesaid document is signed by the mortgagor himself, which has been attested by two witnesses and not by both the parties as is in the case of lease. (iii) Clause 2 of the document is reproduced below for facility of reference:- “2. During the period of Mustajri, the muqralium (in whose favour document is executed) shall themselves pay land revenue and water tax to the government and shall be responsible to obtain receipts and handover the same to me.” Section 76(C) of the Transfer of Property Act, Svt. (iii) Clause 2 of the document is reproduced below for facility of reference:- “2. During the period of Mustajri, the muqralium (in whose favour document is executed) shall themselves pay land revenue and water tax to the government and shall be responsible to obtain receipts and handover the same to me.” Section 76(C) of the Transfer of Property Act, Svt. 1977 provides that mortgagee in possession in the absence of a contract to the contrary, must pay the Government revenue and other charges of a public nature and arrears of rent in default of payment of which the property may be summarily sold. The document in question contains the aforesaid stipulation that the mortgagee in possession shall pay land revenue and water tax to the government, which goes to show that the document in question is a mortgage. (iv) Clause 10 and 11 of the document are reproduced below for facility of reference:- “10. The trees existing at present and grown in future in the land shall remain as my property, but Muqralium shall have right to the fruits and pruning of the trees. 11. If the Muqralium build any house in the land for their own residence, they shall have right to lift their material (Malba) after expiry of the Mustajri period. If they do not lift malba from the land within three months after expiry of Mustajri period, then the malba shall stand forfeited in my favour and the muqralium, thereafter shall have no right to lift the malba.” Thus, from perusal of the aforesaid clauses, it is evident that the intention of the parties was to create an interest in the property, which is evident from the aforesaid clauses and shows that the intention of the parties was to execute a mortgage. 14. It is pertinent to mention here that all the three authorities under the Act, namely Collector, Commissioner Agrarian Reforms and the Special Tribunal have held that the document in question is a usufructuary mortgage and is not lease. Learned Single Judge while assigning cogent reasons has upheld the findings recorded by the authorities under the Act. 15. 14. It is pertinent to mention here that all the three authorities under the Act, namely Collector, Commissioner Agrarian Reforms and the Special Tribunal have held that the document in question is a usufructuary mortgage and is not lease. Learned Single Judge while assigning cogent reasons has upheld the findings recorded by the authorities under the Act. 15. For the reasons recorded by us supra, we agree with the conclusion arrived at by the authorities under the Act as well as by the learned Single Judge, as the findings recorded by the authorities under the Act as well as by the learned Single Judge cannot be termed as perverse. 16. Now we may revert to the submissions made on behalf of the appellants. The contention that since the document in question does not contain a stipulation that mortgagor shall be entitled to receive possession of the land in question on payment of mortgage money and shall be entitled to receive rent/profit in lieu of interest on the mortgage money, therefore, the document in question cannot be termed as mortgage, is concerned, suffice it to say that Clause-6 of the aforesaid document clearly say that after expiry of the period mentioned in the document, the amount of loan shall be deemed to be extinguished and the mortgagor shall be entitled to redeem possession of the property without payment of any amount. From close scrutiny of Section 58(d) of the Transfer of Property Act, Svt. 1977, it is evident that usufructuary mortgage can be created in lieu of payment of mortgage money as well. Therefore, the submission that the document nowhere mentions that mortgagor shall be entitled to receive rent or profit in lieu of interest on the mortgage money, is misconceived. So far as submission that Collector ought to have framed issues and should have tried the suit transferred to it as a civil suit is concerned, suffice it to say that such plea has not been raised before the authorities under the Act as well as before the learned Single Judge. Therefore, the same cannot be permitted to be raised for the first time in this intra court appeal. 17. Since we have already held that the document in question is not lease but a mortgage, therefore, the contention of the appellants that they are entitled to benefit of Sections 4 and 8 of the Act cannot be accepted. Therefore, the same cannot be permitted to be raised for the first time in this intra court appeal. 17. Since we have already held that the document in question is not lease but a mortgage, therefore, the contention of the appellants that they are entitled to benefit of Sections 4 and 8 of the Act cannot be accepted. So far as alternative submission made by the learned senior counsel for the appellants that even if document in question is considered as usufructuary mortgage, same would not be covered under Section 10 of the Act is also misconceived as under Section 10(2) of the Act, the mortgage should subsist on the date of commencement of the Act, which came into force in the year 1978. Whereas, admittedly, in the instant case, period for which mortgage deed was executed expired in the year 1973. 18. In view of the preceding analysis, we do not find any merit in this appeal. In the result, the same fails and is hereby dismissed.