# GOV ARDHAN DASS & 8 ORS v. SMT. SITABAJ

- **Citation:** [1969] 1 S.C.R. 270
- **Court:** Supreme Court of India
- **Decided:** 1968-05-03
- **Case number:** Civil Appeals Nos. 984 and 985 of 1965
- **Bench:** J. C. Shah, V. BllARGAVA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gov-ardhan-dass-8-ors-v-smt-sitabaj-4392
- **Pages:** 7

## Headnote

Cenlral Prori11ces and Berar Tenc.ncy Act, 1883-Mortgage or 'sir'
lands-Whether cultivating rights given up by n1ortgagors-Acqulsition of
occupancy rights under ss. 12 and 13.
Central Provinces Tenancy Act (I of 1922), ss. 12 and 13, 49 and
50-Acquirilion of tenuncy rights by n1ortgagors tlzcreundcr-l~ffcct of
purchase by 1nortgagee of the n1ortgagor~· rights in insolvency proceeding.
The pre<lccc-;sors-in-intcrcst of the
respondent executed
usufrutory
mortgage da'ds in 1898 in favour of the predecessors-in-interest of the
appellants in respect of certain 'sir' land.
Jn 1940 oI>O of 1he mortgagors,
R, t!Y,, husband of respondent, was declared insolvent and his share in the
proprietary rights which vested in the Jno;olvcncy Court \Vas purchased
by the morlgagce.
Some disputes arose about the amount and the right
of redemption under the mortgage between the mortgagee and the other
mortgagor S, the matter w:ls rCferrcd to arhitration.
In pursuance
of
·the decree in this award, the mortgagee purchased the share of ·s· including his rightc; in 'sir'. R died, and when his widow the respondent was dispossessed from the land in pursuance of the mortgage decree posSC<l in
terms of the a\\·ard. she filC(l an application to the Revenue Court under
s. 12 and s. f3 of the
C~entral Provinces Tenancy Act for rCstoration
of possession of her occupancy rights in the land, which was aHowed.
Thereupon the appellants filed the suit claiming possession. which was
partly allowc-0.
Both the parties appealed and in appeals the suit was
dismissed, which in furthct" appeals, was upheld hy the High C-Ourt.
HELD : The. appcllantc; were not entitled to claim possession in this
suit.
The mere m::ntion of the 'sir' land as part of the property mortgaged
can only be interpreted as laying dov.·n that the proprietary rights in the
'sir' land "'·ere subject of the mortgages. so the cultivato'ry rights continued
to remain \lt'ith the mortgagors.
The circumstance was further borne out
hv the fact that even after execution of the usufructuary mortgages in
1895, the mortgagors continued to cultivate this land and actual possession
over this land fo'r the purposes of cultivating it was not obtained by the
mortgagee.
In nv:;sc circumstances. it vt'as clear that the mortgagors
must have become e:a::-proprietary occupancy tenants of this land in the
year 1895. [273 G. HJ
Even if the mortga~ors become ordinary tenants in 1895. it was clear
that by tm time the Act came into force in the year 1920, they must
have hecomc occupancy tenants as defin,ed in .s. 10 of the A71·
So th.e
claim of the appellants that they acquired rights to possession of this
land on the basis of the mortgages in 1895, in these circ:umstances, must
fail. [274 DJ
The appellants• claim that the rights of S pO'sed to them when they
purchased his right~ in execution of the decree under the award and that
the shore of R passed to them when his rights were transferred by the
Insolvency C-Ourt, fails in view of the provisions of s. 12 or s. 49 of the
B
-
c
D
E
F
G
H
B
D
E
rGOVARDF!AN v. SITABAI. (Bhargava, J.)
271
Act, as they then stood.
As a result of these p"rovisions,
the rights· of
the ex-proprietory occupancy tenant could not have been transferied
in favour of the mortgagees.
Section 50, as it was at that time, did
permit transfer of certain rights of an ex·proprietory occupancy tenant;
but, to be valid such transfers required permission of the appropriate
revenue authority.
In this case, there is no suggestion that, when transfers were obtained by the mortgagees in pursuance· of the decree in the
award and in pursuance of the insolvency proceedings against R, the
transfers purported to be .affected we're made with the permission of the
appropriate authority.
Consequently under s. 49 those transfers would
be void. [274 H-275. CJ
Section 12 barred the transfer of cultivatory rights of an occupancy
tenant in execution of the decree of a civil court or in insolvency proceedings. In fact, such rights d

## Text

GOV ARDHAN DASS & 8 ORS.
v.
SMT. SITABAJ
May 3, 1968
[J. C. SHAH AND V. BllARGAVA, JJ.J
Cenlral Prori11ces and Berar Tenc.ncy Act, 1883-Mortgage or 'sir'
lands-Whether cultivating rights given up by n1ortgagors-Acqulsition of
occupancy rights under ss. 12 and 13.
Central Provinces Tenancy Act (I of 1922), ss. 12 and 13, 49 and
50-Acquirilion of tenuncy rights by n1ortgagors tlzcreundcr-l~ffcct of
purchase by 1nortgagee of the n1ortgagor~· rights in insolvency proceeding.
The pre<lccc-;sors-in-intcrcst of the
respondent executed
usufrutory
mortgage da'ds in 1898 in favour of the predecessors-in-interest of the
appellants in respect of certain 'sir' land.
Jn 1940 oI>O of 1he mortgagors,
R, t!Y,, husband of respondent, was declared insolvent and his share in the
proprietary rights which vested in the Jno;olvcncy Court \Vas purchased
by the morlgagce.
Some disputes arose about the amount and the right
of redemption under the mortgage between the mortgagee and the other
mortgagor S, the matter w:ls rCferrcd to arhitration.
In pursuance
of
·the decree in this award, the mortgagee purchased the share of ·s· including his rightc; in 'sir'. R died, and when his widow the respondent was dispossessed from the land in pursuance of the mortgage decree posSC<l in
terms of the a\\·ard. she filC(l an application to the Revenue Court under
s. 12 and s. f3 of the
C~entral Provinces Tenancy Act for rCstoration
of possession of her occupancy rights in the land, which was aHowed.
Thereupon the appellants filed the suit claiming possession. which was
partly allowc-0.
Both the parties appealed and in appeals the suit was
dismissed, which in furthct" appeals, was upheld hy the High C-Ourt.
HELD : The. appcllantc; were not entitled to claim possession in this
suit.
The mere m::ntion of the 'sir' land as part of the property mortgaged
can only be interpreted as laying dov.·n that the proprietary rights in the
'sir' land "'·ere subject of the mortgages. so the cultivato'ry rights continued
to remain \lt'ith the mortgagors.
The circumstance was further borne out
hv the fact that even after execution of the usufructuary mortgages in
1895, the mortgagors continued to cultivate this land and actual possession
over this land fo'r the purposes of cultivating it was not obtained by the
mortgagee.
In nv:;sc circumstances. it vt'as clear that the mortgagors
must have become e:a::-proprietary occupancy tenants of this land in the
year 1895. [273 G. HJ
Even if the mortga~ors become ordinary tenants in 1895. it was clear
that by tm time the Act came into force in the year 1920, they must
have hecomc occupancy tenants as defin,ed in .s. 10 of the A71·
So th.e
claim of the appellants that they acquired rights to possession of this
land on the basis of the mortgages in 1895, in these circ:umstances, must
fail. [274 DJ
The appellants• claim that the rights of S pO'sed to them when they
purchased his right~ in execution of the decree under the award and that
the shore of R passed to them when his rights were transferred by the
Insolvency C-Ourt, fails in view of the provisions of s. 12 or s. 49 of the
B
-
c
D
E
F
G
H
B
D
E
rGOVARDF!AN v. SITABAI. (Bhargava, J.)
271
Act, as they then stood.
As a result of these p"rovisions,
the rights· of
the ex-proprietory occupancy tenant could not have been transferied
in favour of the mortgagees.
Section 50, as it was at that time, did
permit transfer of certain rights of an ex·proprietory occupancy tenant;
but, to be valid such transfers required permission of the appropriate
revenue authority.
In this case, there is no suggestion that, when transfers were obtained by the mortgagees in pursuance· of the decree in the
award and in pursuance of the insolvency proceedings against R, the
transfers purported to be .affected we're made with the permission of the
appropriate authority.
Consequently under s. 49 those transfers would
be void. [274 H-275. CJ
Section 12 barred the transfer of cultivatory rights of an occupancy
tenant in execution of the decree of a civil court or in insolvency proceedings. In fact, such rights did not vest in the Insolvency Court at all under
the. Provincial Insolvency Act.
Consequently, the mortgagees could not
acquire title to cultivatory right by virtue of the proceedings taken in
execution of the decree in civil suit or in the insolvency proceedings.
The right continued to vest in the mortgagors and the respondent, who
was entitled as the :sole su'rvivor to those rights, was rightly restored to
possession by the revenue authorities. [275 E-G]
The challenge, to the decision of the revenue authorities on the ground
that its jurisdiction to grant relief under s. 13 of the Act is confined to
cases where one of the co-itenants claims poss-ession on being illegally
dispossessed and not in a case where the sole tenant has been dispossessed,
was immaterial, because relief from the same revenue authority could be
claimed by a sole tenant by an application under s. 100 of the Act. The
application filed by the respondent could, therefore, be treated as
an
application under s. 100 of the Act in case she was the sole tenant, and
the grant of relief to her was not without juriscijction. [275 H]
CIVIL APPELLATE JURISDICTION:
Civil Appeals Nos. 984
and 985 of 1965.
Appeals by special leave from the judgment and decree dated
April 28, 1961 of the Madhya Pradesh High Court in Second
Appeals Nos. 176 and 177 of 1969.
~
F
H. R. Gokha/,e, S. T. Khirwadkar and I. N. Shroff, for the
..
G
H
appellants.
R. S. Dabir, 0. P. Malhotra, P. C. Bhartari and /. B. Dadachanji for the respondent.
The Judgment of ~he Court was delivered by
Bhargava, J. The appellants brought a suit against the respondent for possession- of a plot Kharsa No. 1227 having an area
·of 58.35 acres of Mouza Shahpur, Tehsil Burhanpur in November, 1950 on the ground that they had been unlawfully dispossessed from this land.
Thls land formed part of the propel'ty of one
Laxmanrao who had two sons Vishwasrao and Krishliarao.
Krishnarao had· two sons Dinkerrao and Shamrao. Shamrao
was adopted by Vishwasrao in the year 1895.
The ri~ht~ ;in
certain village properties, including 'Sir' lands, vested in .this Jwnt
family consisting of Vishwasrao, his adopted son Shamrao, ·and
272
SUPREME COURT REPORTS
[1969) I SC.R.
his nephew Dinkerrao. The three of them jointly executed two
mortgage deeds in that year, and, in the mortgage deeds, mentioned that they were mortgaging the property which
was described as 'MaJguzari Mouzas and Sir land of Tchsil Burhanpur
District Nimar', and 'Maufi Government land' situa1c in certain
villages in Pargana Jainabad, Tehsil Burhanpur. The mortgages
were in favour of the predeccssors-in-title of the appellants.
In
the year 1928, there was a partition in the j0 in1 Hindu family
of the mortgagors.
By this time, Dinkerrao had died leaving two
sons Ramchandrarao and Wamanrao.
Vishwasrao and Shamrao
had also died and Shamrao left an adopted son Shankerrao alias
Narayanrao. who was the natural son of Dinkerrao, but had been
adop1cd by Shamrao.
The parties to the partition were, therefore, Shankerrao, the adopted son of Shamrao, Ramach<tndrarao
and Wamc111rao the sons of Dinkerrao.
Shankerrao received t
share in the property. while Ramachandrarao
and
Wam~nrao
received
~ share each.
In that partition Wamanrao separated
from Shankerrao and Ramachandrarao who continued to be joint.
and, with the consent of the mortgagee, the mortgage liability
was not continued against the share of Wamanrao.
The liability
under the mortgages was undertaken entirely by Shankerrao and
Ramachandrarao.
On this partition, in the propcr1y remaining
joint with Shankcrrao and Ramachandrarao, Shankerrao had 2/3rd
share and Ramachandrarao had I /3rd share, because. originally.
before partition Shankerrao was entitled
to
l
share
and
Wamanrao to J sh~re.
In the year 1939, the proprietary rights of Shankerrao were
purchased by one Vinayakrao, so that, under the law then existing, Shankerrao became the ex-proprietary occupancy tenant of
his share in the 'Sir' plot No. 1227. In 1940, Ramachandrarao
was declared insolvent and his share in the proprietary rights.
which vested in the Tnsolvency Court, was sold and purchased by
the mortgagee. The result was that Ramachandrarao also became
ex-proprietary occupancy tenant of his 'sir' plot No. 1227, so that
~his plot became a co-tenancy of Shankerrao and Ramachandrarao in the capacity of ex-proprietary occupancy tenants.
Thereafter. there was some dispute about the amount and the right of
redemption under the mortgage between Shankerrao
and
th~
mortgagee, and this dispute was referred to an arbitrator, Sn
Vipat, who gave his award, on the basis of which a decree was
passed by the Court of Additional District Judge, Khandwa.
In
pursuance of ~hat decree, Shankerrao's 2/3rd share. including
his rig.h.ts in the 'sir' plot No. 1227. was purchased by the mortgagee.
Tn 1940, Ramachandrarao had died and his ~x-p~opr~etary
occupancy rights in that plot No. 1227 had vested m his widow.
Sitabai. the respondent in these appeals.
Tn 1942, when she was
dispossessed from this plot No. 1227 in pursuance of the mortgage
B
c
D
E
F
G
H
1
·~
'
..
GOVARDHAN v. SITABAI (Bhargava, !.)
273
A·
decree passed in terms of the award, she filed an application to
the Revenue Court under sections 12 and 13 of the Cemral Provinces Tenancy Act I of 1920 (hereinafter referred to as
"the
Act") for restora1ion of possession of her occupancy rights in this
plot No. 1227. The Revenue Court allowed her claim and restored her to the possession of this plot.
Thereupon, the appellants filed the suit claiming possession of this plot as mentioned
above.
The suit was partially decreed by the trial Court granting
8
c
D
E
F
G
H
to the appellants the righ1 to joint possession with Sitabai on th.e
basis that they had 1/3rd share in the plot, while Sitabai conunued to be entitled to the remaining 2/3rd share.
Both parties
filed appeals to the Court of the District Judge, Khandwa.
T~e
lower appellate Court dismissed the appeal of the appellants m
respect of the 2/3rd share in this plot No. 1227, and allowed the
respondent's appeal in respect of the
l/3rd share of the sa~e
plot, with the r~sult that the whole suit of the appellants stood dismissed.
The appellants then filed two appeals before the High
Court of Madhya Pradesh.
The High Court dismissed both the
appeals and consequently, the appellants have now come up to
this Court against that judgment of the High Court in this appeal
by special leave.
The High Court in its judgment held that the finding of fact
recorded by the lower appellwte 'court that the mortgagees in the
year 1895 did not get possession over cultivatory rights in this
plot was decisive of the claim put forward ill' this case on behalf
of the appellants.
The Court was of the view that, not having
obtained possession over the cultivatory rights, the appellants were
not entitled to claim actual possession from the mortgagors, who
had become occupancy tenants of this plot.
We consider that
this decision arrived at by the High Court is perfectly correct.
It is true that the two mortgages of the year 1895 were both
usufructuary mortgages and they included mortgage of the 'sir'
land. There was, however, no express mention in those mortgages
that the mortgage was to operate in respect of the cultivatOf)'
rights also in this 'sir' land.
The mere mention of the 'sir' land
as part of the property mortgaged can only be interpreted as laying down that the proprietary rights in the 'sir' land were the
subject of 'the mortgages, so that the cultivatory rights continued
to remain with the mortgagors.
This circumstance is
further
borne . out by the finding of fact recorded that, even after the
execution of <the ~sufructuary mortgages in 1895, the mortgagors
contmued to cultivate this land and actual possession over this
land for purposes of cultivating it was not obtained by the mortgagee.
In these circumstances, it is cleat that the mortgagors
must have become exproprietary occupancy tenants of this land
in the year 1895.
274
SUPREME COURT REPORTS
[1969] i S.C.R.
Learned counsel appearing on behalf of the
appellants
put
before us one provision of the C.P. and Berar Tenancy Act of
1883, which was then in force, to show that the rights of exproprictary tenant could only accrue if the proprietary rights in
'sir' land were transferred by sale and not if they were transferred
by usufructuary mortgage. The whole of that Act was not plac~'d
before us and, consequently we have been handicapped in our
effort to determine what rights accrued to the mortgagors when
the usufructuary mortgages were executed hy them, but possession
over cultivatory rights in the 'sir' land was retained.
In the circumstances, we considered it advisable to examine the position
on the basis of both aHcrnatives.
One alternative is that they
became ex-proprietary occupancy tenants when the usufructuary
mortgages were executed. The other alternative is that the righls
of ex-proprietary tenants--<lid not accrue, but they did become
tenants of the mortgagees in whom the proprietary rights vested
because of the usufructuary mortgages.
Even if the mortgagors
became ordinary tenants in 1895 it is clear th":, by the time the
Act came into force in the year 1920, they must have become
occupancy tenants as defined in s. 10 of the Act.
Section l 0
lays down that "Every tenant who is not an absolute occupancy
tenant or a sub-tenant
is an occupancy tenant." Clearly, the
mortgagors were not sub-tenants nor is it the case of any party
that they were absolute occupancy' tenants of this plot No. 1227.
Consequently, they must be held to he occupancy tenants of this
plot under the Act. Long before the year 1939, therefore, the
mortgagors must be held to have become occupancy
tenants of
this land or ex-proprietary occupancy tenants of it.
The claim
of the appellants that they acquired righ1s to possession of this
land on the basis of the mortgages of 1895, in these circumstances,
must fail.
The alternative claim put forward on behalf of the appellan1s
was that, under the decree passed on the basis of the award, and
in the proceedings for insolvency of Ramachandrarao, tl1c rights
in this land were acquired by the mortgagees 1hrough the proceedings taken by the courts.
The claim was that the rights of
Shankerrao passed to the mortgagees when the mortgagees purchased his righ·ts in execution of the decree in Civil Suit No. 12-A.
of 1942 of the Court of Additional District Judge. Khandwa
passed on the basis of the award given hy Sri
Vipat. while the
remaining 1 /3rd share of Ramachandrarao also passed to them
wh.~n his rights were transferred by the Insolvency Court.
This
claim, clear!)', fails in view of the provisions of s. I 2 or s. 49
of the Act as they stood at the relevant time.
Section 49 deals
with the right of transfer of lands cultivated by an ex-proprietary
occupancy tenant, while s. I 2 deals with the right of transfer of
lands cultivated by an occupancy tenant.
We need not go mto
B
c
D·
E
F·
G :.
H
A
B
c
D
E
F
G
H
GOVARDHAN V. SITABAI (Bhargava, J.)
275
the question whether the expression "occupancy tenant" in s. 12.
does or does not include an ex-proprietary occupancy tenant. If
it be held that the mortgagees had become ex-proprietary occupancy tenants of the land in 1895 as a result of the execution of
usufructuary mortgages, the provisions of s. 49 would apply. As
a result of those provisions, the rights of 1he ex-proprjetary occupancy tenant could not have been transferred in favour of the
mortgagees.
Section 50, as it was at that •time, did permit transfer of certain rights of an ex-proprietary occupancy tenant; but,
to be valid, such transfers required permission of the appropriate
revenue authority.
In this case, there is no suggestion that, when
transfers were obtained by the mortgagees in pursuance of the
decree in Suit No. 12-A of 1942 and in pursuance of the insolvency proceedings against Ramachandrarao, the transfers purported to be effected were made with the permission of the appropriate authority. Consequently, under s. 49, those transfers would
be void.
Taking 1he case of the second alternative that the mortgagors
did not become ex-proprietary occupancy tenants in 1895 and
were occupancy tenants simpliciter when the Act came into force,
the transfers in favour of the mortgagees under the decree in
Civil Surt No. 12-A of 1942 and in the insolvency proceedings
would be in contravention of s. 12 of the Act.
It appears that
the revenue authorities, in restoring possession to Sitabai on her
application purporting to be under s. 13 of the Act, proceeded on
the basis of this second alternative that. the rights of the mortgagors were governed by s. 12 of the Act. We are unable to hold
that, in this proceeding, the revenue authorities committed any
error. Section 12 barrec\ ,the transfer of the cultivatory rights of
an occupancy tenant in execution of the decree of a civil court
or in insolvency proceedings.
In fact, such rights did not vest
in the Insolvency Court at all under the Provincial Insolvency
Act.
Consequently, the mortgagees could not acquire title to
cultivatory right by virtue of the proceedings taken in execution
of the decree in civil suit or in the insolvency proceedings.
The
right continued to vest in the mortgagors and the respondent, who
was entitled as the sole survivor to those rights, was rightly restored to possession by the revenue authorities.
The decision of the revenue authorities was challenged on
one other ground viz., that the jurisdiction to grant relief under
s. 13 of the Act is confined to cases where one of the co-tenants
claims possession on being illegally dispossessed and not
in a case where the sole tenant has been dispossessed. It appears
to us that this is immaterial, because relief from the same revenue
authority could be claimed by a sole tenant by an applicatior
under s. 100 of the Act.
The application filed by Sitabai for
restoration of possession could, therefore, be treated as an appli-
276
St:PREME COURT REPORTS
[ 1969] I S.C.R.
cation under s. I 00 of the Act in case she was the sole tenant, and
the grant of relief to her was not without jurisdiction.
In these
circumstances. it is clear that the appellants are not entrtled to
claim possession in this suit.
The appeals fail and are dismissed with costs.
One hearing
A
~
B
Y.P.
Appeals dismissed.