GULABBHAI RANCHHODBHAI Vs. BHAGVAN KESUR

JUDGEMENT

(1.) The question involved in these appeals is as to the construction of documents which are described as valatdan. The documents in all these cases have been held to be of the nature of leases and not mortgages. It is urged on behalf of the appellants that the documents were passed in consideration of previous debts, that they were described as valatdan and the word patta was not mentioned, that the relation of debtor and creditor continued, and that the documents ought to be considered as mortgages and not as leases, and reliance is placed on the decisions in Tukaram V/s. Ramchand (1901) I.L.R. 26 Bom. 252, s.c 3 Bom. L.R. 718, P.B. and Mahmad V/s. Bagas (1908) I.L.R. 32 Bom. 569, s.c. 10 Bom. 742. On behalf of the respondents reliance is placed on the decision of the Privy Council in Nidha Sah V/s. Murli Dhar (1902) 5 Bom. L.R. 111, s.c. L.R. 30 I.A. 54.

(2.) It is strongly urged on behalf of the appellants that valatdan is described as a kind of mortgage in Robertson's Glossary, and also in the Dictionary of the Gujarati language published by the Gujarat Vernacular Society and in Belsare's Dictionary. It is further urged that the lower appellate Court was wrong in holding that the etymological meaning of valatdan was "rent paid in advance," and that according to Shabdartha-Sindhu it meant "grain repaid" and signified a kind of usufructuary mortgage of the produce of the land, It is urged on the other hand that the etymological meaning of valatdan which is "rent paid in advance," is accepted by the learned District Judge well conversant with the Gujarati language.

(3.) Assuming, however, that the meaning of valatdan is "a kind of mortgage" under which the grain and produce of the land would be taken so long as the principal and interest are realised, it is not the name given to a contract, but it is the contents and the jural relations constituted by it that determine its nature. See Subhabhat bin Babanbhat V/s. Vasudevbhat bin Subhabhat (1877) I.L.R. 2 Bom. 113; Abdulbhai V/s. Kashi (1887) I.L.R. 11 Bom. 462; Tukaram v. Ramchand (1901) I.L.R. 26 Bom. 252, 256, s.c. 3 Bom. L.R. 778 F.B. In the case of Nidha Sah V/s. Murlidhar, the document described as a mortgage was held to be a lease by their Lordships of the Privy Council, and though the word "patta" equivalent to lease in "valatdanpatta" was used to describe the document in Mahmad V/s. Bagas (1908) I.L.R. 32 Bom. 569, s.c. 10 Bom. L.R. 742, Batchelor, J. held that the document was not a lease but was a mortgage. The contents of the document have, therefore, to be looked to in determining the real nature of the document. In Nidha Sah V/s. Murli Dhar it was held that the document, though described as a mortgage, was not a mortgage in any proper sense of the word, that it was not a security for the payment of any money or for the performance of any engagement, that no accounts were to be rendered or required, that there was no provision for redemption express or implied and that it was simply a grant of land for a fixed term free of rent in consideration of a sum made out of past and present advances. The document in the first two appeals was in respect of a past advance and the document in the last appeal was passed in respect of a present advance. It is urged on behalf of the appellant that the words tehene pete meant "as security for that" (the amount). On the other hand, it is argued that it means" in consideration of that." The words tehene pete are not decisive either way. It is urged on behalf of the respondents that the document contained a covenant for quiet enjoyment which would be out of place in a mortgage-deed but would be necessary if the document was a lease for a long term. There is considerable force in the contention that in the case of a mortgage, the mortgagee would be entitled to recover his mortgage money in case his possession was disturbed and a covenant for quiet enjoyment would be more appropriate in a document of lease than in a document of mortgage. Further, the document contains an agreement by which the owner is not to object to alienation of the valatdan hakk by way of sale, mortgage or gift. Such a provision would be more appropriate in a document of lease than in that of a mortgage. It is conceded that the stamp required for a deed of lease and for a deed of mortgage would be the same, and therefore, no inference can be raised from the stamp affixed to the document. Special stress is laid on the words that after the completion of the specified term, "you as well as your heirs and representatives have no right over the said rupees." It is contended on behalf of the appellant that the clause shows that the relation of debtor and creditor continued till the end of the term. The words used are not that the amount advanced by you will be wiped off, but that you shall have no claim over the aforesaid rupees, and they would equally mean that you have got what you have bargained for, i.e., a long term lease and have enjoyed the land for the specified period and shall have, therefore, no right thereafter to claim back the aforesaid money. The same words were used in a valatdan patta which formed the subject matter of the decision in Bai Heta V/s. Bhagvan Morar (1915) S.A. No. 932 of 1914, decided by Batchelor and Shah, JJ. On November 30, 1915 (Unrep.), and it was held by Batchelor and Shah JJ., following the, decision in Nidha Sah V/s. Murli Dhar, that the document was a lease and not a mortgage. In Lalbhai Javer V/s. Ranchhod Bhagvan (1912) S.A. No. 573 of 1911, decided by Chandvarkar and Batchelor, JJ. on February 20, 1912 (Unrep.) and Adam Bagas Vali V/s. Ise Bagas (1912) S.A. No. 574 of 1911, decided by Chandavarkar and Batchelor, JJ., Chandavarkar and Batchelor JJ. considered a similar document as a lease though it was described as a valatdan mortgage. In Lalbhai Hathihhai V/s. Besai Kalan (1912) S.A. No. 816 of 1912 decided by Batchelor and Shah, J. on July 17, 1812(Unrep.) a similar document was considered to be a lease by Batchelor and Shah, JJ. In Anandram Vithuram v. Vithu valad Khandu (1912) Appeal from Order No. 7 of 1912, decided by Chandavarkar Ag. C.J. and Fatchelor, J. on July 4, 1912 (Unrep.) Chandavarkar Acting Chief Justice and Batchelor J. held that a similar document was a lease and not a mortgage on the ground that in a mortgage deed there is no room for a covenant for quiet enjoyment on the part of the mortgagee, because, if the mortgagee's possession under a usufructuary mortgage is disturbed by a third person, the mortgagee cannot sue the mortgagor for damages and if the third party succeeds in establishing his title to the land mortgaged and ousts the mortgagee, the mortgagee has the right given to him by law to sue to recover the mortgage-amount and interest from the mortgagor personally, and that in case of a lease, the lessor does not covenant with his lessee for title, and unless there is an express covenant to that effect the law does not imply any such covenant, and it is also usual in the case of leases to have covenants for quiet enjoyment.