MT. KASHIBAI Vs. SANDOO

JUDGEMENT

(1.) 1. The facts so far as it is necessary to state them for the purposes of this appeal, are as follows: One Mt. Gangabai succeeded to the fields in suit as malik makbuza muafidar sarkar on the death of her husband Shamrao. These fields were being cultivated by defendants who are recorded as occupancy tenants. On 31st October 1920, Mt. Gangabai sold her malik makbuza rights in them to the defendants. She has since died and the present suit is brought for possession by her daughter Mt. Kashibai who has succeeded to the property as heir of her father. It has been found by the lower Court in the plaintiff's favour that the sale by Gangabai was not for legal necessity and is not binding on the reversioner. The lower Court also did not uphold the defendants' second plea that their rights as occupancy tenants did not merge in those acquired by the sale but remained dormant and that therefore they could not be ejected. The lower appellate Court upheld the first finding but not the second. It considered that the tenant right never completely merged in the sale and could be revived. The plaintiff's suit was therefore dismissed it being remarked that no decree for a declaration about the sale deed could be given as that would need a separate valuation and Court-fees. The appellant's counsel refers to the general principle of merger in Section 111, Clause (d), T.P. Act, which says: A lease of immovable property determines in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right.

(2.) GANGABAI , it is said, was for the time being the owner of the property and transferred by the sale deed all the rights of ownership and that it is immaterial that the sale was voidable at the hands of the reversioners. Merger, it is said, depends on the question of intention and this is to be gathered from the conduct of the defendants. They thought they had purchased full rights and they got their names mutated in the settlement papers: see Exs. P-5 to 13. There is no mention in the sale deed (Ex. P-1) of their retaining rights of occupancy tenants. It is only now that, when they are likely to be dispossessed, they fall back on this plea. The appellant also wishes me to adopt the reasoning in an unreported case of this Court Kisan v. Manwar Sahib 1925 Nag 406. The lower appellate Court has discussed that case but held it not applicable. On the question of the connexion between merger and intention I am referred to Yesaji v. Ramkrishna (1907) 3 NLR 142. It might be added that a similar consideration arises Under Section 101, T.P. Act, in the case of subsequent mortgagees. That section was entirely recast in 1929, and now there is a presumption against merger, but as it formerly stood, the general rule was that the mortgage was extinguished unless the mortgagee could prove that it was to his interest to keep it alive, and that it was his intention at the time of the transaction to do so.

(3.) THE question is not free from difficulty, but I think that in such cases the general rule is that merger would occur. There is certainly no overt act or declaration by the vendees that they intended to retain occupancy rights. If they had any apprehensions about losing their title on the death of Gangabai, one would have expected them to make some such declaration. The mere fact that the transaction in suit is voidable did not in law detract from the title conferred by Gangabai. The defendants remained full owners until their title was upset by a reversioner. If the latter had failed to take any action, their title was good against the whole world. I therefore do not think that merger was prevented by the mere fact that the vendor was a woman. I do not think that the case in Kisan v. Manwar Sahib 1925 Nag 406 is of such assistance; it was decided on different principles with reference to the possibility of encouraging fraud. These considerations do not apply to the present case and with due respect I would differ from the learned A.J.C. who took no account of the intention of the parties. To me it appears that these defendants by taking the sale thought that their title would be secure and threw away the tenancy just as must as if they had formally surrendered it. The case of Kashi v. Durga (1911) 7 NLR 184, has been relied on by the learned Judge of the lower appellate Court, but that case is easily distinguishable on the ground that there was only a mortgage of proprietary rights and not a sale. It was thus easy to presume that tenant rights did not merge under the mortgage. The ratio decidendi is given at p. 158: The lessor in the present case retained the light of ownership when she effected the mortgage, and so all her interests did not vest in the lessee.