RAM ADHAR SINGH DEAD Vs. BANSI DEAD

JUDGEMENT

(1.) The short question involved in this appeal on certificate is whether a Division Bench of the Allahabad High Court was right in following the decision of an earlier Division Bench in Barhu Singh v. Kharpattu, 1956 All LJ 87 : (AIR 1956 All 436), which was later reiterated in Samharu v. Dharamraj Pandey, 1969 All LJ 943: (AIR 1970 All 350) (FB), that a usufructuary mortgage of an occupancy holding was not valid as a mortgage with all its incidents and subject to the provisions of the law relating to usufructuary mortgages, but was valid only to the limited extent that the mortgagee was entitled only to retain possession of the land mortgaged till there was repayment of the mortgage debt.

(2.) The question arose in proceedings in a suit under S. 202 of the, U.P. Zamindari Abolition and Land Reforms Act, 1951 for possession on payment of the mortgage money brought by, respondent 1 Bansi claiming himself to be an heir of the original mortgagors Sheo Balak and Ram Phal, on the ground that the appellants who were the successors-in-interest of the original mortgagee Bhairo Singh, had become asamis, and therefore liable to ejectment under S. 21(l)(d) of the Act. The suit was resisted by the appellants on the ground inter alia that the usufructuary mortgage deed dated July 21, 1869 having been executed when the Recovery of Rents (Bengal) Act, 1859 was in force, was a valid one and therefore the right of redemption stood extinguished in the year 1929 as a result of which the mortgagors Sheo Balak and Ram Phal, the predecessors-in-interest of the respondent lost all their right, title and interest in the land and thus the appellants could not be treated as asamis liable to ejectment under S. 2 1 (1)(d) of the Act but had- indeed become sirdars. That defence of theirs weighed with the Judicial officer, Varanasi who by his judgment dt. May 11, 1960 dismissed the plaintiff's suit. On appeal by the respondents, the Additional Commissioner, Varanasi Division, Varanasi by his judgment dt. Oct. 10, 1960 decreed the plaintiffs suit holding that the usufructuary mortgage of occupancy rights was valid only in a qualified sense in that the appellants were entitled to retain possession until the mortgage debt was paid. The learned Additional Commissioner observed that no tenancy law right from the Recovery of Rents (Bengal) Act, 1859 to U.P. Tenancy Act, 1939 ever made the occupancy rights transferable. The appellants preferred an appeal to the Board of Revenue but Shri S. N. Mitra, ICS, Judicial Member, Board of Revenue by his judgment and order dated April 25, 1963 dismissed the appeal. The appellants moved the High Court under Art. 226 of the Constitution but a learned single Judge by his judgment dt. Feb. 28, 1966 dismissed the writ petition and upheld the order of the Board of Revenue. On appeal, a Division Bench following the decisions in Khiali Ram v. Nathu Lal, (1893) ILR-15 All 219 (FB), Barhu Singh v. Kharpattu, (AIR 1956 All 436) (supra) and Samharu v. Dharamraj Pandey, (AIR 1970 All 350) (FB) (supra) held that the transaction of the present. kind was not a mortgage properly so-called but yet was a mortgage within the meaning of S. 21(l)(d) of the Act.

(3.) Shri Juneja, learned counsel for the appellants, who are successors-in-interest of the original mortgagee Bhairo Singh strenuously assails the correctness of that view and contends that both the Board of Revenue as well as the High Court failed to appreciate that the usufructuary mortgage of the occupancy holding in question was executed by Sheo Balak and Ram Phal, the predecessors-in- interest of the respondents, on Asadh Sudi 12 Samvat 1925, corresponding to July 21, 1869 i.e. at a time when the Recovery of Rents (Bengal) Act, 1859 was in force. He presses into service certain observations of Sir Richard Couch, C. J. in Narendra Narayan Roy Chowdhary v. Ishan Chandra Sen, (1874) 13 Bengl LR 274 (278) for the submission that a usufructuary mortgage was valid under S. 6 of that Act. We find it difficult to accept the contention.