GULAB SINGH Vs. DIWAN BAHADUR BALLABHDAS

JUDGEMENT

(1.) THE suit out of which this appeal has arisen was instituted by the present respondent a asking, as against the appellants, for possession of the sir and khudkast lands that had been comprised in a mortgage executed on the 10th September 1891. The only defense to the suit which now remains for consideration was baaed upon Section 42 of Act IX of 1881, an Act which, although it has been subject to certain sub sequent modifications and change, operates and binds the parties to this mortgage. That section runs in these terms: Every person whose proprietary rights in land comprising sir land are, after this Act cases into force, transferred in any of the following cases, namely: (a) When he sells those rights without expressly agreeing to transfer his right to cultivate the sir land, (6) when those rights are sold for an arrear of land revenue, (c) when those rights are sold in execution of any decree which does not expressly direct the sale of his rights in the sir land, shall become an occupancy tenant of that sir land, and the rent payable by him as such shall be fixed by a Revenue Officer on application made by him or by his landlord.

(2.) THE relevant clause in the section is the last and the question that has been argued before their Hardships is whether or no the decree under which this sale was made did or did not expressly direct the sale of the rights in the sir land. The Judicial Commissioners from whom this appeal proceeds tools the view that it did; bat their Lordships think, in the circumstances of this casa, it is unnecessary to examine and consider that question, and for this reason that the appellant in this case cannot be heard to maintain that it did not. The mortgage undoubtedly comprised all the rights in the sir land. In the course of the judgment by the Judicial Commissioners, it is stated that it was not contended before them that upon a true construction of the mortgage deed all the mortgagor's rights in the sir land were not mortgaged and these rights would obviously include the right to cultivate it and in a judgment of this beard on an appeal arising out of the same mortgage Gulab Singh v. Raga Seth Gokuldas (i) I there is an expression of opinion to the same effect. That expression of opinion does not follow upon any elaborate argument; because, in truth, examination of the mortgage deed makes it plain.

(3.) AN appeal was brought from that judgment and it was challenged upon many grounds. Among others, it was urged that the Court had been wrong in holding that, under the terms of the mortgage, the mortgagee could exclude the mortgagor from his cultivating rights in the sir. That question by agreement between the parties was left over. It was in their Lordships' view an unfortunate circumstance that, when such a matter, obviously open for decision, could and might then have been readily decided, it should have been postponed to a later date with the inevitable result of provoking further dispute in the future. beth parties, however, agreed to this course and the judgment upon which the decree was then based contains this statement: Both sides agree that it would be premature to decide what the position of a purchaser under decree absolute for Bale will be in respect of the sir. In the list of the mortgaged property on the back of the lower Court's decree for the words with cultivating rights in sir, the following will be substituted with all actual and reputed rights as detailed in the mortgage.