MADANSINGH RAMSINGH MALGUZAR Vs. DEPUTY COMMISSIONER

JUDGEMENT

(1.) THE order in this case will also govern the decision in Misc. Civil Case No. 93 of 1941. These two applications are for review of the order, dated 13th February 1941, passed by Clarke J. in civil Revn. No. 256 of 1940. The decision has been published in Jankilal v. Deputy Commissioner, Bilaspur A.I.R. 1941 Nag. 163. The applications have come before us for our decision as Clarke J. has retired. Madansingh is a Kanwar by caste. He executed a mortgage by conditional sale on 3rd August 1926, in favour of Jankilal, Matadin and Gajadhar. On the basis of this mortgage, the mortgagees filed Civil Suit No. 78 of 1936, on 18th August 1936, in the Court of the First Subordinate Judge, Second Class, Bilaspur. A preliminary decree for foreclosure was passed on 1st October 1936, and a final decree for foreclosure on 7th February 1938. In pursuance of the final decree the mortgagees obtained possession of the mortgaged property and mutation was effected in their favour.

(2.) THE Deputy Commissioner, Bilaspur, applied under Section 25(2), C.P. Land Alienation Act, 2 of 1916, in the Court of the Additional District Judge, Bilaspur, to set aside the decree for foreclosure passed by the Court of the First Subordinate Judge, Second Class, Bilaspur, on the ground that it was contrary to the provisions of the Land Alienation Act. By the order, dated 10th February 1940, in Misc. Judicial Case No. 74 of 1938, the Court of Additional District Judge, Bilaspur, declared the preliminary and final decrees passed in Civil Suit No. 78A of 1936, in the Court of the First Subordinate Judge, Second Class, Bilaspur, as ultra vires and illegal and set them aside. The amount due to the mortgagees under the mortgage was determined and the case was referred to the Deputy Commissioner, Bilaspur, under Section 9(3) of the Act. The mortgagees filed Civil Revn. No. 256 of 1940 to set aside the order passed by the Court of the Additional District Judge, Bilaspur. The non-applicants were Madansingh, the mortgagor, and the Deputy Commissioner, Bilaspur. A notice was served on the Deputy Commissioner but he was not represented at the hearing. Madansingh was represented by the Advocate-General. By the order, dated 13th February 1941, Clarke J., set aside the order passed by the Court of the Additional District Judge. Two applications have been filed--Misc. Civil Case No. 92 of 1941 by Madansingh and Misc. Civil Case No. 93 of 1941 by the Deputy Commissioner, Bilaspur--for review of the order. The Government Pleader appeared for the applicants. He stated before us that the order of Clarke J. is of a far reaching character and will prejudicially affect a large class of persons for whose benefit the Land Alienation Act, 1916, had been enacted. As a matter of great public importance, he has invited us to express our opinion regarding the soundness of the interpretation put by Clarke J. on the provisions of the Act. Two questions arise for decision: (i) Whether Clarke J. has correctly interpreted the Act, and (ii) whether an application for review of his order is competent.

(3.) UNDER Section 25(1) of the Act, every Court, which passes a decree or an order involving the permanent alienation, mortgage or lease by a member of an aboriginal tribe of his land, is directed to send a copy of the decree or order to the Deputy Commissioner. This was not done in the case. The Deputy Commissioner has been empowered to move the appellate Court for revision of the decree or order of the lower Court if such decree or order is contrary to the provisions of the Act. The Court of the Additional District Judge, which was an appellate Court, determined that the mortgage dated 3rd August 1926, which was intended to operate by way of conditional sale, was executed by Madansingh who was a member of an aboriginal tribe and as such the decree for foreclosure was contrary to the provisions of the Act and altered it so as to make it consistent with the Act. Clarke J. has taken a different view and held that the mortgage was not contrary to the provisions of the Act. The question for decision is whether his view is correct. The decision depends on the interpretation of the provisions of the Land Alienation Act. The Act has been enacted for the protection of aboriginal tribes and elaborate provisions have been made to secure this object. There is, however, no definition of the expression 'aboriginal tribe' in the Act. Under Section 3 the Provincial Government has been empowered by a notification to determine what bodies of persons are to be deemed aboriginal tribes for the purposes of the Act. When a person is 'deemed to be' something, the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were : see Income-tax Commissioner, Bombay Presidency v. Bombay Trust Corporation . 4. The effect of the notification under Section 3 of the Act declaring Kanwars as members of an aboriginal tribe is that though in reality they are not members of an aboriginal tribe they are to be treated as such for the purposes of the Act. Once this declaration is made a mortgage executed by a Kanwar will be deemed to have been made by him as a member of an aboriginal tribe whatever be the date of the execution of the document. This is so on account of the statutory fiction embodied in the section. They are thus entitled to the protection given to a member of an aboriginal tribe under the Act. No land belonging to a member of an aboriginal tribe is liable to sale in execution of a decree or order of a civil or revenue Court made after the commencement of the Act (Section 16). No receiver can be appointed to manage his land under Section 51, Civil P.C. It has been judicially determined that his land is not liable to attachment: see Balaram Misra v. Mansingh . A member of an aboriginal tribe may effect a permanent alienation of his land in favour of another member. He is however not entitled to do so in favour of a person who is not a member of an aboriginal tribe. If he does so the alienation shall not take effect as such unless and until sanction is given thereto by the Deputy Commissioner (Section 4). A member of an aboriginal tribe may execute a mortgage of the nature mentioned in Section 6(1)(a) of the Act, or in any form which the Provincial Government may, by general or special order, permit under Section 6(1)(d). A mortgage by conditional sale or a mortgage which is intended to operate by way of conditional sale, is not one of the mortgages which is permitted. Section 10 distinctly prohibits such mortgages. The section runs thus: In any mortgage of land by a member of an aboriginal tribe after the commencement of this Act any condition which is intended to operate by way of conditional sale shall be null and void, Madansingh was a member of an aboriginal tribe. The mortgage was made by him after the commencement of this Act. There was a condition in the mortgage that on default in the payment of the amount due under the mortgage on the date stipulated therein the mortgaged property will be foreclosed. This amounts to a mortgage by conditional sale as defined by Section 2(5) of the Act. Under Section 10 the condition was null and void, and as such the mortgagees were not entitled to a decree for foreclosure either preliminary or final.