Patna High Court
Udai Chand vs Jang Bahadur Singh on 2 March, 1917
Equivalent citations: 40IND. CAS.500, AIR 1917 PATNA 401
JUDGMENT Mullick, J.
1. This second appeal arises out of a mortgage executed by defendants Nos. 1 and 2 and their father Mahabir Singh on the 14th August 1896 in favour of the plaintiff in respect of the shares in several mouzas inclusive of 200 bighas of zerait land. Out of the said 200 bighas an area of 50 bighas was, according to the plaintiff, left in the possession of the mortgagors as licensees, who were liable to pay a nominal rent of 8 annas per bigha for use and occupation. By a kabuliyat dated the 25th September 1902 a further area of 4 bighas, 10 cotlahs was let out to the defendants at a rental of Rs. 14-5-6.
2. The defendants in the present suit comprise three sets of persons, (1) the mortgagors, (2) the subsequent mortgagees, and (3) certain persons recorded as raiyats upon the lands alleged to be zerait.
3. The plaintiff's suit is for arrears of rent and for khas possession in terms of the mortgage.
4. The Munsif found that the persons in occupation had acquired ocoupancy rights in all the lands and decreed only the claim for rent. On appeal the learned Subordinate Judge held that occupancy rights had been acquired in the jungle lands, but not in the 50 bighas which were zerait and which came under the operation of Section 116 of the Bengal Tenancy Act, and he decreed the suit for rent and directed that if the mortgagor-defendants paid the arrears under Section 66 of the Bengal Tenancy Act within 15 days they would be exempted from ejectment. With regard to the jungle land he dismissed the suit for ejectment. The plaintiff now prefers this second appeal,
5. The first and most important question for determination is what is the construction to be put upon the clause relating to the letting of the 50 bighas. Was it an attornment olause creating the relationship of landlord and tenant or was it a mere condition of the mortgage as between mortgagor and mortgagee, and was the stipulation for payment of Rs. 25 per year in essence a condition for securing the principal and interest.
6. We have most anxiously considered the bond and are satisfied that the relationship of landlord and tenant was not created by this stipulation. It was not an attornment clause at all. It was an arrangement made by favour of the landlord by which the mortgagor was allowed to remain in possession in the capacity of something like a licensee. It is admitted that the rent of 8 annas per bigha was not a fair and reasonable rent and I can conceive of no reason why the mortgagee should have brought the mortgagor upon the land at such a grossly inadequate rental, knowing full well that by the operation of our tenancy laws the latter might set up rights in derogation of his own rights as mortgagee. How dangerous such an act would have been if the lands had been ordinary agricultural lands has been shown by the fact that the Munsif found that the 50 bighas are not zerait lands and that the occupiers have occupancy rights. In the face of the learned Subordinate Judge's finding, however, that dispute no longer arises and we must take it that the lands are zerait and that the protection afforded by Section 116 of the Bengal Tenancy Act against the acquisition of occupancy rights applies.
7. In England it has been held that a mortgagor who remains in possession of the mortgaged property by the terms of the mortgage-deed without express provision is only quodam modo a tenant-at-will. A tenancy may, however, be expressly created by an express provision in the mortgage-deed and in that case he becomes a tenant by attornment and the relationship of landlord and tenant is fully created. The effect of such an attornment is that the landlord by reason of the provisions of the Bills of Sale Act, which require registration, cannot as in ordinary rent executions levy by distress but with that exception all the other legal incidents arising out of the relationship of landlord and tenant fully operate between the mortgagor and the mortgagee.
8. When a mortgagor enters into a contract of tenancy with a mortgagee after the latter has entered into possession then if the rent is fair and reasonable and the transaction amounts to a re-demise of the land, the mortgagee as landlord is competent to avail himself of the remedy of distress also.
9. But in any event whether the attornment is by the mortgage-deed itself or by a separate subsequent-deed, the law in England appears to be that the relationship of landlord and tenant, if clearly and distinctly created, may subsist side by side with relationship of mortgagor and mortgagee. See Daubuz v. Lavington (1884) 13 Q.B.D. 347 : 53 L.J.Q.B. 283 : 51 L.T. 206 : 32 W.R. 772 Isherwood; Ex parte; Knight In re (1883) 22 Ch. D. 384 : 52 L.J. Ch. 370 : 48 L.T. 398 : 31 W.R. 442 and Hall v. Comfort (1887) 18 Q.B.D. 11 : 56 : L.J.Q.B. 185 : 55 L.T. 550 : 35 W.R. 48.
10. The policy of the law in allowing attornment by the mortgagor to the mortgagee was apparently in case of the mortgagee and to give him the additional remedies, for securing his principal and interest of distraint and summary recovery of possession.
11. The possibility of any prudent mortgagee creating a title in the mortgagor in derogation of his mortgage rights was never contemplated by the law of England. In India this consideration applies with still greater force. Here occupancy and non-occupancy rights are created by operation of statutory law, and unless there are the strongest reasons for doing so we ought not to give a construction to an alleged attornment clause in a mortgage-deed, which will have the effect of creating rights of tenancy in derogation of the mortgagee's rights. Is the intention to create the relationship of landlord and tenant so clearly and unequivocally expressed in the deed under consideration in the present case, that we are compelled to say that no other construction of the mortgage-deed is possible? In my opinion the answer is in favour of the mortgagee.
12. We ought not, unless we are compelled to do so, hold that the mortgagee did in this case what no ordinary prudent mortgagee would have done. In my opinion the deed may be construed as showing that the real relation between the parties was not that of landlord and tenant but mortgagee and mortgagor and that the arrears of rent claimed in the present suit are really on account of principal and interest. In England such sums are a charge upon the property but the mortgagee is entitled to re-enter if there is a clause to that effect. In America the stipulated rent is not a charge upon the property and the mortgagor may redeem without paying rent due to the mortgagee on the ground that the agreement to pay is only personal. Nanu v. Raman 16 M. 336 : 3 M.L.J. 141 : 5 Ind. Dec. (N.S.) 940; Altaf Ali Khan v. Lalta Prasad 19 A. 496 : A.W.N. (1897) 128 : 9 Ind. Dec. (N.S.) 320; Imdad Hasan Khan v. Badri Prasad 20 A. 401 : A.W.N. (1898) 90 : 9 Ind. Dec. (N.S.) 617; Madhwa Sidhanta Onahini Nidhi v. Venhataramanjulu Naidu 26 M. 662 and Baghelin v. Mathura Prasad 4 A. 430 : A.W.N. (1882) 71 : 2 Ind Dec. (N.S.) 992 favour the view that what is to be looked at is the real intention of the parties and that even when the alleged attornment is created by a conveyance other than the mortgage-deed it is open to the Court to hold that the mortgage and the lease constitute one transaction and that the mortgagee is entitled to count the alleged rent as a charge upon the morfgaged property qua principal and interest.
13. In Chimman Lal v. Bahadur Singh 23 A. 338 : A.W.N. (1901) 95 and Khuda Bakhsh v. Alim unnissa 27 A. 313 : A.W.N. (1904) 273 : 1 A.L.J. 715 the Court held that the leases which were executed subsequently to the mortgage-deed showed an intention on the part of the mortgagee to create a tenancy and not to continue the relationship of mortgagee and mortgagor.
14. These cases are, however, only authority for the proposition that the facts of each particular case must be taken into account in order to see what was the intention of the parties. If the intention was to create the relationship of landlord and tenant then the rent law of the country will apply.
15. In this view of the case it is unnecessary for us to consider the status of the mortgagors and of the persons who have been recorded in the Record of Bights as occupancy raiyats. The plaintiff is entitled upon the terms of the mortgage-deed itself to a decree for the amount claimed as rent and for recovery of possession upon the terms of the mortgage of the 50 bighas.
16. With regard to the 4 bighas 10 cottahs of jungle land the matter is different. Here the letting was six years after the mortgage and it in clear terms creates the relationship of landlord and tenant. Here the mortgagee appears to have entered into the contract of tenancy with his eyes open and he must, therefore, take the consequence of the operation of the rent law. That law does not preclude the mortgagor from securing the status of an occupancy raiyat under his mortgagee.
17. I agree with the learned Munsif that the mortgagor has occupancy rights in this holding and that he cannot be ejected for non payment of rent. The decree in regard to this plot of land will be only for recovery of the arrears of rent and the prayer for recovery of possession will be dismissed.
18. A question has been raised before us as to the position of the mortgagors in respect of the zerait lands. In our view of the case that question does not arise. There is a conflict of opinion on this point in the Calcutta High Court, but we incline to the view that as the mortgagors have been held not to be occupancy raiyats they must be non-occupancy raiyats and that the Tengal Tenancy Act does not contemplate a raiyat who does not come under the classes enumerated in Section 4 of the Act.
19. Mr. Mritunjay Lal, who appeared for certain minor defendants, attempted to attack the learned Subrrdinate Judge's finding' that the mortgagors and other persons in possession of the zerait lands were non-occupancy raiya's. But that point was never argued before the learned Subordinate Judge. Mr. Mritunjay Lal says that the point was not taken because his clients were respondents but that is no answer. The plaintiff as appellant before the learned Subordinate Judge challenged all the findings of the Munsif and claimed to recover khas possession. It was the duty of Mr. Mritunjay Lal's clients at that stage to take all possible grounds for resisting the recovery of khas possession and they ought to have asked the Judge to hold, as they are now asking us to hold, that the Munsif's finding as to occupancy rights was correct and that the plaintiff was not entitled to re-enter. Having failed to raise the point in the lower Appellate Court, the defendants cannot now do so here.
20. The result, therefore, is that the order of the lower Court be set aside and the plaintiff will get a money-decree for recovery of the arrears claimed on the footing that they represent principal and interest. The plaintiff will also be entitled to recover khas possession of the zerait lands, but his prayer for khas possession of the jungle lands is dismissed. The appeal is decreed with costs in this Court. The order as to costs in the two lower Courts is maintained.
21. This judgment will govern the connected appeals in No. 236; of 1915, No. 2 565 of 1915 and No. 2366 of 1915.
Jwala Prasad, J.
22. I agree that the plaintiff is entitled to re-enter and to recover khas possession of the zerait lands in terms of the clause in the mortgage-bond whereby the mortgagors were allowed to remain in possession of the lands on condition of their payment of the annual rent reserved and to vacate the lands on default of such payment. I also agree that the plaintiff is not entitled to recover khas possession of the jungle lands.