Patna High Court
Sheikh Azmat vs Bibi Tamzan on 18 December, 1919
Equivalent citations: 56IND. CAS.490, AIR 1920 PATNA 652
JUDGMENT
1. The question referred to us for decision by the Munsif of Sitamarhi is whether an usufructuary mortgages in possession of a non transferable occupancy holding, which has been advertised for sale in execution of a rent decree obtained against the mortgagor, has an interest voidable on the sale of the holding, which would entitle him to deposit the dearetal amount under Section 170 (3) of the Bengal Tenancy Act and prevent the sale. In the case under reference the mortgage did not cover the whole holding and had not been recognised by the landlord decree-holder.
2. Under Section 170 (3) of the Bengal Tenancy Act any person having in the tenure or holding any interest voidable on the sale " may make a deposit under the section, and it has been settled by the decisions of this Court in the case of Rameshwar Singh Bahadur v. Baghunandan Khowas 38 Ind. Cas. 337 : 1 P.L.J. 403 : 2 P.L.W. 364 and in the Full Bench case of Muhadeo Lal v. Langat Singh 40 Ind. Cas. 257 : 2 P.L.J. 457 : 1 P.L.W. 50 (1917) Pat. 169 that the only interests which are voidable on the sale within the meaning of Section 170 are the interests defined in Section 161 (a) as "incumbrances." Section 161 (a) runs thus :
The term 'inanmbranae, ' used with reference to a tenancy, means any lien, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein, and not being a protected interest as defined in the last foregoing section.
3. In the above oases it was decided that the purchaser from the tenant of the whole or part of a non transferable occupancy holding does not hold any of the interests mentioned in Section 161 (a) and, therefore, does not hold an interest Voidable on sale of the holding which would entitle him to make a deposit under Section 170 (3).
4. The learned Munsif in his reference, and Mr. Parmeshwar Dayal in support thereof, have relied on these two decisions of this Court and contend that a mortgagee from the tenant of a non-transferable holding has not any of the interests mentioned in Section 161 which would entitle him to make a deposit, The cases of a mortgagee and a purchaser are clearly distinguishable; the ratio decidendi in the above cited cases was that a purchaser cannot be said to have acquired a lien, sub tenancy, easement or other right or interest of the same nature or in limitation of his own interest, for a sale is not in limitation of, but is a destruction of, the interest of the tenant. The learned Vakil admits that ordinarily a usufructuary mortgage would come within the term of a lien and a limitation of interest and so be an "incumbrance," but he urges that the mortgage of a non transferable occupancy holding without the consent of the landlord is illegal, neither sanctioned by custom nor binding under the law, and that, therefore, such a mortgage is not covered or contemplated by Section 161 (a). He contends that the transfer by mortgage was void ah initio, and that Section 131 (a) does not refer to non transferable occupancy holdings.
5. Neither of these contentions can be supported. It may be true that, if the entire holding had been mortgaged and the mortgagee left in possession of the whole, the landlord would be entitled to treat the transfer as an abandonment of the holding, and could seek for khas possession, but still the mortgagee, until ejected in due course of law, would hold an incumbrance [Krishna Chandra Daita Chowdhwy v. Khiran Baiania 10 C.W.N. 499]. In the present case a part only of the holding was mortgaged and the landlord could not have sought for ejectment of the mortgagee, as the tenant had not abandoned the holding. The mortgagee would hold an incumbrance and the transfer could not be said to be void or illegal The transfer, in fact, is a valid one as between the tenant and his mortgagee, but as between these two and the landlord its validity depends on the landlord's consent-it is voidable by the landlord but not illegal.
6. In the reference it is argued that wherever in the Bengal Tenancy Act rights are given to transferees of occupancy holdings, the framers of the Act referred only to transferable holdings In support of this argument the learned Munsif cites the case of Girish Chandra Chowdhry v. Kedar Chandra Roy 27 C. 473 : 4 C.W.N. 569 : 14 Ind. Dec. (N.S.), which merely decides that Section 22 of the Act when read with other sections, must refer to transferable holdings; it does not support the Munsif's contention.
7. On the other hand, Mr. Parmeahwar Dayal urges that under the law all occupancy holdings are non-transferble and that it is only custom that can make them transfer-able. If this is right, it is most unlikely that the framers of the Act would draw up the provisions as to the rights of transferees in contemplation only of the transferability of holdings, such transfer-ability being the exception. There is nothing to show that Section 161 (a) relates to transferable holdings only.
8. The learned Vakil would have us read into Section 161 (a) the words '"valid against the landlord " after the words or other right or interest" and treat the section as relating to transferable holdings only. This plainly cannot be done the section must be read and interpreted' as it stands; it is quite clear and needs tie interpolation or addition to make its sense plain, and it contains no words limiting its operation either to transferable holdings or to interests valid against the landlord.
9. If we turn to Clause (g) of Section 160, we find that where a landlord has expressly and in writing given his tenant permission to create any right or interest, such right or interest becomes a "protected interest;" thus where the written eon-Sent is obtained for the transfer of a non transferable occupancy holding, the interest transferred will be a protected one, which is a higher interest than an incumbrance and is excluded from the definition of incumbrances. Section 160 (g) it not limited to transferable occupancy holdings or even to occupancy holdings. It may ha inferred from the two sections that, where no permission is given in writing in the case of a transfer by mortgage of a non transferable occupancy holding, the interest acquired by the mortgagee is an incumbrance.
10. The effect of a deposit by a mortgagee is that under Section 171 he becomes entitled to possession as mortgagee of the tenant, and the landlord by withdrawing the money deposited will be taken to consent. It is argued that it is hard on the landlord that he should be forced to accept as mortgagee in possession a man whose claim he refused to recognise; but after all, if a holding is put up to gale, the landlord has to accept as tenant whoever makes the highest bid, and, by putting up the holding to sale, he valuntarily takes the risk of getting a tenant he does not want.
11. It is clear that the decisions in Rameshwar Singh Bahadur v. Raghunandan Khawas 38 Ind. Cas. 337 : 1 P.L.J. 403 : 2 P.L.W. 364 and Mahadeo Lal v. Langat Singh 40 Ind. Cas. 257 : 2 P.L.J. 457 : 1 P.L.W. 50 (1917) Pat. 169 with regard to the rights of a purchaser of a non-transferable holding to make a deposit under Section 170 (3) are not wholly applicable to the case of a mortgagee of a like holding, and we are satisfied that in the terms of Section 151 (a) the mortgagee of a non-transferable occupancy holding has an incumbrance which is an interest voidable on the sale of the holding entitling the mortgagee to make a deposit under Section 170(3),
12. We are supported in our finding by the dictum of Roe and Jwala Prasad, JJ. in the unreported case of Iswar Prasad Singh, C.R. 129 of 1916, that The corollary to the case of Rameshwar Singh v. Raghunandan Khawas 38 Ind. Cas. 337 : 1 P.L.J. 403 : 2 P.L.W. 364 is that any person holding a lien by which a tenant has limited his interest is entitled to make a deposit under Section 170." Furthermore, it has admittedly been the practice hitherto to allow ft mortgagee of a non-transferable occupancy holding to deposit the decretal amount under Section 170(3).
13. We would accordingly answer this reference by saying that the usufructuary mortgagee in possession of a non transferable occupancy holding is entitled to make a deposit under Section 170, Sub-section (3), of the Bengal Tenancy Act.