MAHABIR PRASAD Vs. MAHESH PRASAD

JUDGEMENT

(1.) This appeal and the connected execution second appeal No. 121 of 1929 arise out of the same execution proceedings and in this way: The decree-holders, who are the appellants before us, namely Mahabir Prasad, Mt. Mahdei and Narain Das obtained a preliminary decree for sale on 31 March 1925 against one Badri Prasad and his two sons, and Mahesh Prasad and his son. Badri Prasad and Mahesh Prasad were uncle and nephew. The preliminary decree was passed on foot of a mortgage executed by Badri Prasad and Mahesh Prasad on 5 August 1920. The judgment-debtors belong to the district of Banda, to which the Bundelkhand Land Alienation Act applies. By Act 2 of 1903 (Local), Section 4, the Local Government was entitled to determine by notification in the Gazette what bodies of persons in any district were to be deemed to be agricultural tribes for the purpose of the Act. The act was meant to restrict the power of alienation of the inhabitants of Bundelkhand. Section 16 of that Act says: No land belonging to a member of an agricultural tribe shall be sold in execution of any decree or order of any civil or revenue Court, made after the commencement of this Act.

(2.) Again Section 10 of the same Act runs: In any mortgage of land made after the commencement of this Act any condition which is intended to operate by way of conditional sale shall be null and void.

(3.) After the passing of this Act, the Government of the United Provinces issued a notification dated 22 June, 1903, by which, among others, the Chaubeys of Godh Kalan (among whom the judgment-debtors are) were declared to be agriculturists. This notification was however modified under Section 23, Bundelkhand Land Alienation Act, by issue of a fresh notification dated 2 October, 1903. By this notification except for the purpose of Section 10, Bundelkhand Land Alienation Act, among other persons, the Chaubeys of Godha Kalan were declared to be non- agriculturists. It was therefore during the period when the Chaubeys of Godha were deemed to be non-agriculturists that the mortgage was made and the preliminary decree for sale was passed. Before the final decree for sale could be made, by notification dated 29 October 1925, the Local Government professed to modify the notification of 2 October, 1903 by declaring that Mahesh Prasad and Badri Prasad were to be taken out of the notification of 2 October, 1903. This means that by the notification of 29 October 1925 Mahesh Prasad and Badri Prasad were again declared to be agriculturists.