RAM SAHAI Vs. DEBI DIN

JUDGEMENT

(1.) This is an application for revision of an order, dated 25 July 1930 passed by the Subordinate Judge of Banda. The applicant who is a member of an agricultural tribe within the meaning of the Bundelkhand Land Alienation Act was a mortgagee under a deed of simple mortgage dated 24 January 1913 executed by Mt. Raj Rani who is now represented by Debi Deen the opposite party who was also a member of such tribe. The land hypothecated by the aforesaid deed is "land" within the meaning of that Act. The circumstances which have led to the revision are so inter-related to the provisions of the Bundelkhand Land Alienation Act 2 of 1903 that it is necessary to make a reference at the outset to Secs.6, 9 and 16 of the aforesaid Act. Section 6 provides that a member of an agricultural tribe can make a mortgage in one of the prescribed forms and not in others. Generally speaking the object of the section is to minimise the chances of foreclosure, if not altogether to prevent it. Section 16 declares that 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. Section 9 provides, inter alia that if a suit is instituted in any civil Court on a mortgage not in the prescribed form made by a member of an agricultural tribe the Court should refer the matter to the Collector who can modify the mortgage so as to make it conform to the provisions of Section 6. Broadly speaking, the mortgages permitted by Section 6 enable the mortgagee to remain in possession for a period not exceeding 20 years during which usufruct is to satisfy the mortgage money and at least interest which is in no case, to run over and above the usufruct. After the expiry of the period the mortgagor is entitled to redeem on payment of the sum, if any, due on the mortgage,

(2.) To advert to the facts of this particular case, the mortgage of 24 January 1913 was in the form of a simple mortgage, the only remedy of the mortgagee being to obtain a simple money decree or a decree for sale of the mortgaged property. The mortgagee instituted a suit for enforcement of that mortgage in 1924, when a claim to simple money decree was barred by limitation. Accordingly he prayed for a decree under Order 34, Rule 4, Civil P.C. for satisfaction of the mortgage money by sale of the mortgaged property. The suit was contested. The Subordinate Judge was of opinion that no decree for sale could be passed in view of Section 16, Bundelkhand Land Alienation Act as that secttion contained a clear provision against sale of "land" belonging to a member of the agricultural tribe. No decree for foreclosure could be passed having regard to the terms of the mortgage deed. He however considered that Section 9, Bundelkhand Land Alienation Act was applicable, and accordingly on 9 October 1925 he made a reference to the Collector with a view to the latter substituting a mortgage in the form prescribed by Section 6 in place of the mortgage then in suit. The Collector however ruled that Section 9 was not applicable as both the mortgagor and the mortgagee were members of an agricultural tribe, the section being con-fined to cases in which the mortgage is made by a member of an agricultural tribe in favour of a person who is not a member of such tribe.

(3.) The result of this view, which was subsequently upheld by this Court, was that a mortgagee who is a member of an agricultural tribe is in a worse position than a mortgagee who is not, The Collector refused to take action under Section 9 and returned the reference. Strictly speaking there is no provision in the Act requiring the Collector to return", the reference, If the Collector cannot take action under Section 9, the proceedings before him terminate. The Subordinate Judge, on receipt of the Collector's reply, made a reference to this Court under Order 46, Rule 1, Civil P.C. asking for a decision of the question as to what was the proper remedy for the mortgagee in view of the Collector refusing to take action under Section 9. The matter was considered by a Full Bench in Ram Sahai Singh V/s. Debi Din A.I.R. 1926 All. 117. The majority of the Judges composing the Full Bench held that Section 9, Bundelkhand Land Alienation Act, as it then was, did not apply to a simple mortgage between members of the same agricultural tribe. The learned Judges pointed out that there was a hiatus in the Act which worked injustice in a class of cases of which the one before them was an instance. They felt constrained to hold that the law as it stood left the mortgagee without a remedy. After this Court's decision on the reference the Subordinate Judge passed an order, on 10th June 1927 in the following words: No steps can be taken now. The reference has been decided against the decree-holder. It is accordingly ordered that the case be consigned to the record room.