RAM SAHAI SINGH Vs. DEBI DIN

JUDGEMENT

(1.) The question referred to this Bench is really whether the decision of the Chief Justice and Mr. Justice Lindsay, in Bishanath V/s. Bharosa Mis Case No. 634 of 1925 decided on 26 November 1925 is right. The point of law, or rather of interpretation, arises under Section 9 of the Bundelkhand Land Alienation Act. In this case a suit has been brought by a mortgagee of an agricultural tribe, against a mortgagor of the same tribe, that is to say it is a mortgage which is not within the mischief of Section 6. Section 6 forbids a mortgage between a member of an agricultural tribe, where the mortgagee is not a member of the same tribe, or where the mortgagor and mortgagee are not both members of the agricultural tribe, unless it; is in one of the forms prescribed by that section. Section 9(3) provides for the jurisdiction of the Collector in a case of a suit instituted in any civil Court on a mortgage to which Sub-section 1 of Section 9 applies. Sub-section 1 of Section 9 applies to a mortgage made after the commencement of the Act by a member of an agricultural tribe in any manner or form not permitted by or under the Act. Section 6 and Section 10 substantially contain all the matters which are not permitted under the Act. There is nothing in the Act which does not permit an ordinary simple mortgage. The enactment is a prohibitive one, and unless the matter, about which the dispute arises can be shown to be within the prohibition, the prohibition does not apply.

(2.) In my judgment the matter is quite clear, and the view taken by the Chief Justice and Mr. Justice Lindsay was correct. I would only add two observations. It admitted that the policy of the Act is to keep out, what may be colloquially called outsiders. The interpretation contended for by the plaintiff is to my mind inconsistent with the policy of the Act, and would be difficult to adopt even if there were language in the Act which justified that view. Secs.3, 6, 7, 11 and 15 all indicate that the plan of the Act was to control contracts of attempted alienation, which would have the effect of placing immovable property permanently in the hands of persons not members of the agricultural tribe. It seems to me that the decision, with which I agree, is entirely in accordance with the general scheme of the Act.

(3.) The further observation which occurs to me is this: The Chief Justice has already dealt with it in the referring order. By reason of the prohibition against the sale under Section 16, which, as my brother Daniels, J., pointed out during the argument, applies equally to simple money decrees, the security cannot be sold.