Case Note & Summary
The appeal arose from a certificate granted by the Nagpur High Court against its decree in a civil suit for declaration. The dispute concerned a simple mortgage executed by Ramchandar Jat on July 27, 1920, over his 5 annas 4 pies share (half of his 10 annas 8 pies share) in village Tamalawadi in favour of Seth Ram Jiwan and two minors, whose representatives were the respondents. The appellant, Pratap Chand, had purchased the shares of other co-sharers in 1926 and later, in execution of a money decree against Ramchandar, purchased Ramchandar's entire share around 1932, thereby becoming owner of the entire village subject to the mortgage. Ramchandar held sir land measuring 252.49 acres; after the sale of his share, he became an ex-proprietary tenant, was ejected in 1936, and the lands came into the appellant's possession as lambardar. Similarly, lands nominally recorded in the name of Ramchandar's mother but actually in his possession, and certain other lands surrendered to the lambardar, also came to the appellant. The respondents sued on the mortgage, obtained a preliminary decree in March 1937, a final decree, and purchased the mortgaged property on March 1, 1940, receiving a sale certificate. In 1942, they filed a partition suit before the Sub-Divisional Officer, Harda, claiming a share in the sir and other lands as accession to the mortgage under Section 70 of the Transfer of Property Act, 1882. The Sub-Divisional Officer rejected their claim on October 20, 1943, leading the respondents to file the present civil suit for declaration in 1944. The trial court decreed the claim partly; the Nagpur High Court allowed the respondents' appeal, granting one-half share in the sir plots and one-third share in the mother's and other lands. The appellant then appealed to the Supreme Court. The main legal issues were whether the mortgage deed included the sir land of Ramchandar, whether the lands coming into the appellant's possession were accession to the mortgage, and whether the respondents' claim was barred by Order II Rule 2 of the Code of Civil Procedure, 1908. The appellant contended that the mortgage deed did not mention sir or the mother's plots, and that these were not included in the decree or sale certificate. The respondents argued that the entire half share was mortgaged, including sir, and that the subsequently acquired lands were accession. The Supreme Court examined the mortgage terms and held that the mortgage covered the entire half share, and the descriptive words like khudkashat were by way of precaution, not limitation. Since it was a simple mortgage without possession, the mortgagor never lost the right to occupy the sir land, so Sections 49 and 50 of the Central Provinces Tenancy Act, 1920 did not apply and no sanction was needed. The sale certificate using the words 'all rights pertaining to the share' included the proprietary rights in sir land. Lands coming into the appellant's possession as lambardar while the mortgage subsisted were held for the entire body of proprietors, and thus the mortgagees were entitled to a share as accession under Section 70. The claim was not barred by Order II Rule 2 because the cause of action was distinct. The cases Hazarilal v. Hazarimal and Seth Manakchand v. Chaube Manohar Lal were distinguished. Accordingly, the appeal was dismissed and the High Court's decree affirmed, upholding the respondents' right to share in the sir land and other lands as accession to the mortgage.
Headnote
A) Property Law - Mortgage - Scope of Mortgage - Transfer of Property Act, 1882, Section 58 - A simple mortgage of entire share includes proprietary rights in sir land even if not specifically mentioned; mortgage without possession does not require sanction under Tenancy Act Sections 49 and 50 - The court held that the mortgage deed of 1920 mortgaged the entire half share, and the description of khudkashat etc. was by way of precaution, not exclusion; since it was a simple mortgage without possession, the mortgagor did not lose right to occupy sir land, so Sections 49 and 50 of CP Tenancy Act did not apply - Held that the mortgage included proprietary right in sir land. (Paras Not mentioned) B) Property Law - Accession to Mortgage - Lands Coming into Mortgagee's Possession - Transfer of Property Act, 1882, Section 70 - Lands that came into the appellant's possession as lambardar after ejection of mortgagor were accession to mortgage - The court reasoned that as the appellant purchased the entire share and later got possession of sir land and other lands while mortgage subsisted, these lands were held for the entire body of proprietors and the mortgagees were entitled to share - Held that respondents entitled to half share in sir lands and one-third share in other lands. (Paras Not mentioned) C) Civil Procedure - Res Judicata/Constructive Res Judicata - Bar of Order II Rule 2 - Code of Civil Procedure, 1908, Order II Rule 2 - Claim to lands not mentioned in earlier mortgage suit plaint not barred - The court held that since the specific lands were not part of the cause of action in the mortgage suit, the subsequent claim for share in those lands was not barred by Order II Rule 2; cases Hazarilal and Seth Manakchand distinguished - Held that claim not barred. (Paras Not mentioned) D) Revenue Law - Sir Land and Khudkashat - Distinction - Central Provinces Land Revenue Act, 1917, Sections 2(5), 2(17), 68, 69 - Sir land is distinct from khudkashat; prohibition on transfer without reservation under Tenancy Act applies only when proprietor loses occupancy right - Court found that because mortgage was without possession, no loss of occupancy occurred, so no sanction needed; nonetheless sir land included in mortgage. (Paras Not mentioned)
Issue of Consideration
Whether the simple mortgage deed of 1920 included the sir land of the mortgagor; whether lands coming into possession of the appellant as lambardar after ejection of the mortgagor were accession to the mortgage under Section 70 Transfer of Property Act; whether the respondents' claim to those lands was barred by Order II Rule 2 CPC
Final Decision
The Supreme Court dismissed the appeal and affirmed the High Court's decree, holding that the mortgage included sir land and that the lands in question were accession to the mortgage under Section 70 of the Transfer of Property Act, 1882.
Law Points
- A mortgage of entire share includes proprietary rights in sir land even if not specifically mentioned
- Sections 49 and 50 of Central Provinces Tenancy Act
- 1920 apply only when proprietor loses right to occupy sir land
- Lands coming into mortgagee's possession during subsistence of mortgage are accession under Section 70 Transfer of Property Act
- 1882
- Sale certificate covering 'all rights pertaining to share' includes proprietary rights in sir land
- Claim for later discovered lands is not barred by Order II Rule 2 CPC because they were not mentioned in earlier mortgage suit plaint
