Patna High Court
Janak Sahi And Ors. vs Jamuna Shahi And Ors. on 10 April, 1980
Equivalent citations: AIR1981PAT62, 1981(29)BLJR57, AIR 1981 PATNA 62, 1980 BBCJ 514, (1980) BLJ 558, 1981 BLJR 57, 1981 BLT (REP) 120, (1980) PAT LJR 304
JUDGMENT U.C. Sharma, J.
1. This application hi revision is directed against an order dated 28-5-1977 passed by the Munsif, East Muzaffarpur, in a suit for redemption holding that the suit stood abated under Section 4 (c) of the Consolidation of Holdings and Prevention of Frag-
mentation Act, 1956 (hereinafter to be called as "the Act"
2. The plaintiffs instituted a suit against the defendants-first party for redemption of a mortgage bond dated 23-6-1947 executed by one Bigan Singh, father of the defendants-second party, in favour of defendants-1sf party. The subject-matter of the mortgage was lands of plots Nos. 204 and 231 of Khata No. 89. The plaintiffs' case is that they purchased the suit lands from the defendants-second party by virtue of a registered sale deed dated 13-12-1972. The mortgage amount of Rs. 400/- was left with the purchaser for redemption of the mortgage. It was alleged that the plaintiffs after their purchase, tendered the amount to the defendant-first party which having been refused, was deposited in court under Section 83 of the Transfer of Property Act. The defendant-first party did not withdraw the amount. Hence the plaintiffs filed a suit for redemption and recovery of possession and mesne profits.
3. During the pendency of the suit the defendants, besides filing written statement denying the plaintiffs' claim, filed a petition under Section 4 (c) of the Act alleging that the lands covered by the suit, lay in the area where the consolidation proceeding is in progress and prayed that it should be held that the suit had abated, inasmuch as, the suit was for declaration and adjudication relating to interest in land. It was opposed on behalf of the plaintiffs who filed a rejoiner contending that the lands covered by the mortgage admittedly belonged to Bigan Singh who had executed usufructuary mortgage in favour of the defendants-first party. The plaintiffs having purchased the suit lands from the mortgagor is entitled to redeem the said mortgage. To such a suit. Section 4 (c) of the Act was not applicable. Thus, the question arose whether a suit for redemption is covered by the provisions of Section 4 (c) of the Act. The learned Munsif heard the parties on this question and relying on the case of Ram Adhar Singh v. Ram Roop Singh, (AIR 1968 SC 714) held that the suit had abated. Being aggrieved by the said ordei the plaintiffs have come up in revision.
4. The case came up for hearing before Shivanugrah Narain, J. sitting singly. The question for consideration before his Lordship was whether the provisions of Section 4 (c) of the Act are attracted to a suit for redemption. The argument before his Lordship was that there was an apparent conflict between two Bench decisions of this court, namely, the case of Subhag Sah v. Doma Sah, (1979 BBCJ (HC) 722) and the case of Bijli Thakur v. Rameshwar Thakur, (1977 Pat LJR 4-10) and that the former ease required reconsideration. In his Lordship's opinion, the point raised was arguable. The case was, accordingly, ordered to be placed before a Division Bench. This is how the case came before us for hearing and disposal. 5. The point raised before his Lordship was repeated before us by the learned counsel appearing for the parties and discussed m their various aspects. The substantial question, however, is whether a suit for redemption is hit by the provisions of Section 4 (c) of the Act.
6. Section 4 (c) of the Act runs thus:---"Every proceeding for the correction of records and every suit and proceedings in respect of declaration or rights on interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending, stand abated." It would appear that under the aforesaid provision a suit or a proceeding of the following nature alone abates :
(a) Every proceeding for correction of records;
(b) Every suit and proceeding in respect of the declaration of right or interest in any land; and
(c) Every suit or proceeding for declaration or adjudication of any other right in regard to which the proceeding can or ought to be taken under the Act.
We are not concerned here with a proceeding for correction of records. The question is whether a suit for redemption involves a declaration of rights or interest in any land or whether this is a suit for declaration or adjudication of any other right in regard to which proceedings can of ought to be taken under the Act. 1 shall consider both the aspects separately.
7. On the first question, it would be useful to consider what is redemption and what is the scope of a suit for mat purpose. "Redemption" presupposes existence of a "mortgage." 'Mortgage', as defined in the Transfer of Property Act, is the transfer of an interest in immovable property for the purpose of securing the payment of a loan. A mortgage is created by act of parties. In usufructuary mortgage, with which we are concerned, the transfer is made of the right of possession and enjoyment of the usufruct. The rights of a usufructuary mortgagee form part of the bundle of rights which constitute ownership, the remainder still remains with the mortgagor and can be transferred by him. On the execution of a mortgage two distinct rights are carved out, namely, (i) the mortgagee's right; and (ii) the mortgagor's right. The mortgagee's right is the right of security for the repayment of his loan. The mortgagor's right is as indicated in Section 60 of the Transfer of Property Act, i.e., after the principal money has become due, the mortgagor has a right to pay the mortgage money and on such payment he has a right to require the mortgagee, among others, to deliver possession. This right cannot be extinguished except by the act of parlies or by a decree of a court. This right is called the right to redeem and a suit to enforce it is called a suit for redemption. Thus, the scope of a suit fot redemption is primarily to enforce the right to make payment of the mortgage money.
8. This view is supported on analogy of the decision of this court in the cases of Sukhi Lal Sah v. Angrahit Jha. (1979-BBCJ (HC) 566) : (AIR 1980 Pat 18) and Bikarama Dubey v. Hrishikesh Singh, (1979 BBCJ (HC) 726). The first case relates to a suit for specific performance oi contract. Defendants' contention was that suit for specific performance of contract would abate under the provision of Section 4 (c) of the Act. Their Lordships held that a suit for specific performance of contract does relate to any right or interest in land and does not come within the mischief of Section 4 (c) of the Act. In the next case, the question was whether Sections 4 (b) and 4 (c) of the Act are applicable to execution proceedings. The facts of that case were that the plaintiffs filed suit for declaration of title and recovery of possession with respect to certain lands which was ultimately decreed and the plaintiffs filed an execution case. In that case an objection was raised on the ground that since the consolidation proceeding was going on in the village, the execution case should be held to have abated. It was held by this court that the execution proceeding is not covered under the provisions of Section 4 (b) or 4 (c) of the Act, inasmuch as, right or interest in land would not be adjudicated upon or dealt with in the proceeding. From the above examination it would appear that where in a suit or proceeding a claim made does not attach to land or it is not for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act, although it may ultimately affect the rights and interests in land, such suit or proceedings shall not abate under the provisions of the Act. It would appear that a claim to redeem a mortgage actually does not attach to the land, although the decree passed in that suit may ultimately affect possession which is also an interest in land. An owner has a bundle of interests in property. By executing a mortgage he transfers only some interest to the mortgagee and that also by way of security. That interest is confined to realisation of mortgage debt, which, in the event of non-payment, may be realised out of the said security. What remains with the mortgagor after execution of the mortgage, is the ownership of the property, minus the interest transferred, and the right to repay the mortgage money and to get the burden of security discharged. That right has been created in the mortgagor and not in the property Thus, when a mortgagor enforces his right to redeem, he does not enforce a right in land. The provision of Section 4 (c) of the Act, therefore, is not attracted to such a suit.
9. The learned counsel appearing for the opposite party contended that a suit for redemption involves a claim for recovery of possession of land and as a matter of fact, a relief for recovery of possession and mesne profits has been claimed in the instant suit; since the recovery of possession relates to an interest in land, a suit for redemption is also covered by the provisions of Section 4 (c) of the Act. It would, however, appear that in a suit for redemption, the main relief is for enforcing the right to redeem. Other reliefs, namely, the prayer for recovery of possession or mesne profits, is not an independent relief. Other reliefs flow from the main relief. If the main relief does not fall within the mischief of the Act, the reliefs flowing from that relief can hardly be hit by the consolidation scheme. Therefore, the applicability of Section 4 (c) would depend upon the main relief and not on the ancillary relief for the simple reason that on payment of mortgage money the mortgagor is entitled in law to require the mortgagee to deliver possession and that right of his re-
mains unaffected by the Consolidation Act, as the subsequent discussion would show. I find no substance in the argument of the learned counsel. It has, therefore, to be held that a suit for redemption, not being a suit for declaration of light or interest in any land, will not abate under Section 4 (c) of the Act.
10. The next question is whether a suit for redemption is a suit for declaration or adjudication of any other rights in regard to which proceedings can or ought to be taken under the Act. This necessitates the examination of some of the relevant provisions of the Act. Section 8 of the Act provides that, on publication of notification under Section 3 oi the Act, an up-to-date record of rights in respect of lands comprised in the notified area, shall be prepared together with a map. and such record of rights and map shall be deemed to be an up-to-date map and record of rights. Section 9 oi the Act, provides that after preparation of record of rights and map, the authorities shall determine the valuation of each plots and would prepare a register oi lands belonging to Raiyats which shall contain certain particulars including the name of the raiyats, the areas and the serial number of plots held by him, the areas and serial numbers of plots of land in which the raiyat has occupancy right or no occupancy right etc. Under Section 9 (a) the authorities shall prepare a statement setting forth the principles to be followed in carrying out the consolidation operations. Section 10 provides that after publication of the registers of land the statement of principles etc. any person may file objection in respect of publication of the registers prepared and the statement of principles. An appeal has also been provided in that regard. After the objections have been disposed of, the authorities shall prepare a draft scheme of consolidation of holdings in the notified area under Section 11. While preparing the said draft the authorities shall keep certain factors in view which have been stated in Sub-section (2) of Section 11. Sub-section (4) provides that in addition to the particulars contained in the register of lands, the scheme shall specify, among others, the encumbrances, if any, comprised in the existing holdings of any raiyat and the encumbrances, if any, to be transferred or attached to any plot of land comprised in the holding proposed to be allotted to a raiyat. After the draft consolidation scheme has been prepared, it shall be published and objections shall be invited under Section 12 of the Act. Under Section 13 the authorities, after deciding the objection, confirm the scheme and cause the same to be published. Under Section 14 the consolidation' officer shall fix a date with effect from which the final consolidated scheme shall come into force and the raiyat shall enter into possession. Under Section 15 the consolidation officer shall grant to every raiyat to whom a holding has been allotted in pursuance of scheme of consolidation, a certificate in the prescribed form and such certificate shall be conclusive proof of the title of such raiyat to such holding. Section 18 of the Act deals with the transfer of encumbrances. It provides that if any holding included in a scheme of consolidation, is subject to any lease, mortgage or other encumbrance, such lease, mortgage or other encumbrance shall, with effect from the date on which possession is taken or delivered under Section 14, be deemed to be transferred and attached to the holding allotted under the scheme to the raiyat or to such part of it as the consolidation officer may direct, and shall cause to have any effect against the holding from which it is so transferred. Sub-section (3) of Section 18 reads thus:
"Notwithstanding anything contained in Section 14, any lessee or mortgagee of other encumbrancer entitled to possession, may, if necessary, be put in possession of the holding or part of the holding, as the case may be, to which his lease or mortgage or other encumbrance has been transferred under Sub-section (1)." Sub-section (2) of this section relates to the valuation of the holding to which the encumbrance has been transferred and it has been provided that in case the market value of the transferred holding is less than that of the original holding, the encumbrancer shall be entitled to the payment of compensation and such compensation shall be the first charge on the holding. These are the only relevant provisions bearing on the question under consideration.
11. From the analysis of the relevant provisions it would appear that the Act nowhere deals with the rights and liabilities of the parties under a mortgage. The only sections which refer to a mortgage, lease etc., are Sections 11 and 18. Section 11 envisages an enquiry whether a particular piece of land is or is not subject to any encumbrance and if there is such an encumbrance, it shall be specified in the draft scheme. No dispute as to the existence of a mortgage or as to the validity of plaintiffs' purchase has been raised before me in mis case. Both the parties argued the case on the footing that there is a mortgage. The section does not provide anything further than that It does not provide for the determination of the question of the validity or otherwise of the encumbrance or rights or liabilities thereunder, by the authorities. Section 18 provides for transfer of tlie encumbrance from one holding to another depending upon the allotment of holding to the mortgagor in the consolidation proceeding. It is clear that the encumbrance including a mortgage has been left absolutely untouched and unaffected under the scheme of the Act. Kather, the Act recognizes the encumbrance and scrupul-onsly preserves and protects the rights of the encumbrancer. It follows that the rights in or in relation to or under a mortgage are not matters which the consolidation authorities are entitled to determine. Thus, on both the grounds, namely, that a suit for redemption is not a suit in respect of rights or interest in land and that it is not a suit or proceeding for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act, the conclusion is irresistible that a suit for redemption is outside the purview of Section 4 (c). The learned counsel then faintly argued that the Legislature, while amending the Act. must be deemed to be aware of the amendment in the Bihar Money Lenders Act providing for statutory redemption of a mortgage after a lapse of seven years and, therefore, they deliberately omitted to deal with the mortgage in this Act. If that be so, it is difficult to say how the consolidation authorities shall have power to deal with a mortgage or the rights or liabilities thereunder. No such case has been made out in the written statement. This point has been raised for the first time in course of argument. I find no substance in it.
12. The two Bench decisions of this court which are said to be in conflict, may now be examined. Subhag Sah's case (1979 BBCJ (HC) 722) (supra) arose out of a suit for redemption and for recovery of possession and mesne profits. The defendants denied the relationship of mortgagor and mortgagee and contended that as the consolidation proceedings were going on in the village the suit abated under Section 4 (c) of the Act Their Lordships observed that in such a suit a question whether a land is subject to a mortgage or whether the mortgage is subsisting, is a question relating to right or interest in land which may be determined by the consolidation authorities under the Act. Their Lordships then proceeded :--
"The position is, however, different so far a suit of redemption is concerned Within the framework of the Act there is no provision which envisages or authorises consolidation authorities to adjudicate matters which have to be determined in a redemption suft. Nor can they give relief such as is granted in a suit for redemption of mortgaged property. In a suit for redemption the plaintiff has to establish that he has a right to redeem. Where the plaintiff succeeded, the court passes a preliminary decree ordering the taking of accounts and directing payment, if necessary, to the mortgagee. In case of failure to pay, the defendant is entitled to apply for a final decree. None of these matters can be adjudicated or done by the consolidation authorities. The scheme of the Act does not appear to be that where main relief in the suit is such as cannot be adjudicated upon by the consolidation authorities the suit still abates......"
In Bijli Thakur's case (1977 Pat LJR 410) (supra) this court took a view which, according to His Lordship, may be interpreted as holding that the language of Section 4 (c) of the Act is wide enough to cover a suit for redemption. In that case their Lordships observed :--
"...... The provisions of Clause 4 (c) have been expressed in very wide terms and it is quite apparent that the relief oi possession and mesne profits which had been sought in the suit could only be granted on the basis of a declaration of plaintiff's right or interest in the land in suft......"
Section 4 (c) of the Act is, undoubtedly, wide enough to cover all suits where right or interest in any land is involved. A decision, however, should be construed on and in the light of its own facts. In Bijli Thakur's case (supra) the plaintiffs prayed for a declaration of their title and recovery of possession with respect to land. So, the question of title or interest in land was indirectly involved in that suit. The relief of possession or mesne profits followed the main relief. In a suit for redemption, the relief of possession or mesne profits is dependent on redemption. The mortgagor's right to redeem has been recognised by the Statute. If is not panted on the basis of declaration of plaintiffs' right or interest in land. The decision in Subhag Sah's case directly arose out of a suit for redemption, whereas Bijli Thakur's case was a suit for title. The main reliefs claimed in the two suits ate quite different and that makes all the difference so far as the applicability of Section 4 (c) is concerned. In the former case the main relief is not cognizable by the consolidation authorities whereas in the latter case the main relief is directly covered by the Act. If a mortgage cannot legitimately fall within the mischief of the Act. it is impossible to hold that the reliefs claimed thereunder may be hit by it, though some of the reliefs in both kinds or suits may be similar. I do not think, their Lordships meant to say, in Bijli Thakur's case, that all suits, when a question of possession arises, shall be hit by Section 4 (c) of the Act. The view taken by their Lordships in Bijli Thaknr's case should be deemed to be confined to the facts of that case and suits of the nature involved therein. I do not think, that view takes, under its sweep, a suit for redemption. Considered in this light, I see no room for conflict between the views expressed in the two cases. Both operate in diffrent fields. I find no substantial reason to hold that Subhag Sah's case requires reconsideration,
13. The learned counsel appearing, for the opposite party attempted to, explain the Subhag Sah's case (1979 BBC) (HC) 722) on the ground that before a claim for possession is accepted in a suit for redemption the Court will have necessarily to adjudicate upon the right or interest of the plaintiffs in respect of the disputed property taking into account the claim of the contesting defendants. He relied on the following observations of the Supreme Court in the decision reported in AIR 1968 SC 714 (supra) :--
"...... The expressions, every suit and proceedings in respect of the declaration of rights or interest in any land are comprehensive enough to take in the suits for possession of land......"
This observation was referred to in Bijli Thakur's case (1977 Pat LJR 410) to which reference has been made. The learned counsel also referred to a single Judge decision of this court in the case of Jagarnath Dubey v. Ram Kripal Tewary (1979 Put LJR 330) and contended that a suit for redemption, and possession shall fall within the mischief of Section 4 (c) of the Act I, however, do not see any merit in and good reason, to accede to the contention of the learned counsel This is a suit fear redemption. The plaintiff may succeed in the suit merely on proof of the fact that he is the mortgagor by virtue of purchase of a registered deed of sale. It has not been contended before us that the said sale deed or the mortgage deed is void or that they do not subsist and, therefore, the deeds would be deemed to be valid so long as they are not avoided or cancelled. The avoidance or cancellation of a deed is not a matter falling within the purview of the Act. In Gorakh Nath Dube v. Hari Narain Singh, (AIR 1973- SC 2451) their Lordships made a distraction between the cases where a document is wholly or particularly invalid so that it can be disregarded by any Court or authority and one where it has to be actually set aside before it can cease to have legal effect. This case was noticed in Special Bench decision, of this court in the case of Ram Krit Singh v. State of Bihar (1979 Pat LJR 161) : 1979 BBC) (HC) 259 : (AIR 1979 Pat 350) wherein it was observed:--
"..... It was however, pointed out that there is a distinction between eases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. The latter class of cases were held to be outside the scope of the provision relating to abatement of suits."
Obviously, therefore, the plaintiffs' right to redeem in the instant case subsists so long as the deeds stand and the plaintiffs would be entitled to redeem on mere proof of the said deeds. I do not see anything different in the single judge decision referred to by the learned counsel which helps him.
14. It was next contended by the learned counsel for the opposite party that on the allegation in the plaint itself a dispute with regard to a right or interest in land has been raised and. therefore, this suit squarely falls within, the ambit of Section 4 (c) of the Act. It is true that the plaintiffs have stated certain facts in the plaint but they are only by way of historical narration of the case. No relief has been claimed by the plaintiffs against the contesting defendants on the basis of those facts. The plaintiffs have confined themselves to the relief of redemption and to other reliefs incidental to it. The reliefs claimed by the plaintiffs may be granted without going into those facts. Those facts are, therefore, not relevant for the purpose of the suit except by way of clarification. Those facts are that the defendants second party (mortgagor) executed a usufructuary mortgage in favour of the defendants-first party. Thereafter, the mortgagor sold the lands to the plaintiffs. On the basis of the purchase the plaintiffs deposited mortgage money in Court under Section 83 of the Transfer of Property Act. The mortgagees did not withdraw the amount and filed objection alleging that the mortgagor had settled the land to one Tulsi from whom the defendant-first party (mortgagee) claimed to have purchased and thus they claimed to be the owner of the property. The learned counsel for the opposite party submits that on these facts, the question whether the plaintiffs, or the opposite party were the owner of the land arises in the suit which may legitimately be decided in the consolidation proceeding. The present suit would, therefore, abate. It may be pointed out that a claim of paramount title by the mortgagee is foreign to a suit for redemption. It has not been disputed before us that the opposite party had taken the disputed laud in mortgage from the defendants second party nor is it claimed that the said mortgage has been extinguished. Thus, the mortgage in question subsists. That being so, no act or omission, if any, on the part of the mortgagee contrary to or inconsistent with the existence of the mortgage and his position as mortgagee would affect the mortgages and the rights of the mortgator. The opposite party cannot, by any contrivance, wriggle out from his position as mortgagee and deprive the mortgagor of his statutory right to redeem.
On the facts and in the circumstances mentioned above, I am not prepared to accept the contention of the learned counsel. If the opposite party has acquired any right in the land other than that of a mortgagee, it is open to him to agitate the same in a proper form. But he is not entitled to resist the plaintiffs' suit for redemption on that ground.
15. For the reasons stated above, 1 find that this case is fully covered by Subhag Sah's case (1979 BBCJ (HC) 722) (supra). Bijli Thakur's case (1977 Pat LJR 410) (supra) is not in point. There is no question of conflict between the two cases, It is held thai a suit for redemption does not abate under Section 4 (c) of the Act. The order of the Munsif is, thus, not sustain able.
16. In the result, the application succeeds and is allowed and the order dated 28-5-1977 is set aside. There would however, be no order as to costs.
Uday Sinha, J.
17. I agree.