LAXMILAL Vs. GOVERNMENT OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act. 1952 (hereinafter referred to as the Act) against an order of the Deputy Collector Jagir dated 4. 12. 57 whereby the appellant's request for payment of mortgage money due to the appellant on the basis of a mortgage alleged to have been created by the ex-Jagirdar upon the resumed Jagir land out of the compensation and rehabilitation grant was rejected.

(2.) WE have heard the learned counsel for the parties and have examined the case as well. A significant point of law is involved for determination in the case, namely, which authority is competent to hear and determine disputes relating to mortgages created over Jagir lands after the resumption of the Jagir under the Act. The learned lower court has after referring to the provisions of sec. 22 of the Act held that such disputes ought to be decided by a Civil Court and the decree of a Civil Court as and when awarded would be executed by the Jagir Commissioner out of the compensation payable to the Jagirdar. Sec. 22 is completely silent on the point. It lays down the consequences of resumption. As provided in clauses (a) and (b) of sub-sec. (1) of this section the right, title and interest of the Jagirdar and of every other person claiming through him shall stand resumed to the Government free from all encumbrances and of rights, title and interest created in or over the Jagir by the Jagirdar or his predecessor-in-interest shall, as against the Government, cease and determine. Clause (a) of sub-sec. (2) of this section further clarifies that nothing contained in this section shall render the Government liable for the payment of debts incurred by all Jagirdars and the Jagirdar shall be personally liable for the payment of such debts. What shall be the forum for the decision of disputes relating to such debts has not been dealt with in this section and hence the manner in which it has been interpreted by the lower court is clearly untenable. The debts and encumbrances created by the Jagirdar have as against the Government no validity or effect after resumption. But the personal liability of the Jagirdar towards such debts remains unaffected. WE may also refer to the Rajasthan Jagirdars Debt Reduction Act, 1956 which provides for the scaling down of debts of Jagirdars whose Jagir lands have been resumed under the provisions of the Act. Thus for an answer to the question that arises in this case we have to look to the other provisions of the Act and not sec. 22. These provisions are to be found in sec. 37 of the Act which lays down that if in the course of a proceeding under this Act any question relating to title, right or interest in any Jagir land other than a question referred to in sec. 3 of the Rajasthan Jagir Decisions and Proceedings Validation Act arises and the question so arising has not already been determined by a competent authority the Jagir Commissioner shall proceed to make an enquiry into the merits of the question so arising and pass such orders thereon as he deems fit. The interest of a mortgagee to receive money out of the compensation payable in respect of a Jagir land after resumption is an interest within the meaning of this section. The word 'mortgage' has been defined in sec. 58 of the T. P. Act as a transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced, or to be advanced by way of loan, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. The quantum of interest that is transferred is immaterial for any interest for the purpose specified in the section would give rise to a mortgage. The interest transferred would depend upon the character of the mortgage. In a simple mortgage the interest conveyed is the right to cause the property to be sold. In a usufructuary mortgage the transfer made is of the right of possession and enjoyment of the usufruct. A mortgage is a transfer of an interest and in this respect it differs from a charge. A charge-holder is only entitled to have his claim satisfied out of a particular property, but neither the property nor any interest therein is transferred to him. Thus transfer of an interest in immovable property being the essence of a mortgage it naturally follows that the mortgagee of a Jagir land demanding payment of his mortgage money after resumption would be raising the question of an interest within the meaning of sec. 37 of the Act.