# MAHABIR GOPE AND OTHERS v. HARBANS NARAIN SINGH AND OTHERS

- **Citation:** [1952] 1 S.C.R. 775
- **Court:** Supreme Court of India
- **Decided:** 1950-03-23
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahabir-gope-and-others-v-harbans-narain-singh-and-others-66
- **Pages:** 8

## Headnote

-·
S.C.R.
SUPREME COURT REPORTS
MAHABIR GOPE AND OTHERS
v.
HARBANS NARAIN SINGH AND OTHERS.
[MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR
and VIVIAN BosE JJ.l
775
Bihar Tenancy Act, 1937, ss. 5(2), 20, 21-Zuripeslzgi lease--
Lease .by mortgagee for a term of 3 years-Lease continuing in
possession for over 30 years-Whether acquires occupancy rights--
Construction of lease-Mortgagee's power to lease-Limitations--
Transfer of Property Act, (IV of 1882), s. 76 (a) and (e).
As a general rule a person cannot transfer or otherwise confer
a better title on another than he himself has and a mortgagee
cannot therefore
create
an
interest
in
mortgaged
property
which
will
enure beyond
the
termination
of his
interest as
mortgagee. Further, a mortgagee cannot during the subsistence
of the mortgage act in a manner detrimental to the mortgagor's
interestJ;, such as by giving a lease which may enable
the
tenant
to acquire permanent occupancy
rights in
the land, thereby
defeating the mortgagor's right to khas possession.
A permissible settlement by a mortgagee in possession with a
tenant in the course of prudent management and the springing
up of rights in the tenant conferred or created by statute based
on the nature of the land and possession for the requisite period
is an exception to the general rule, but to fall within this exception the settlement of the tenant by
the mortgagee must have
been a bona fide one.
The exception will not apply in a case
where the terms of the mortgage prohibit the mortgagee
from
making any
settlement of tenants on the land either
expressly
or by necessary implication.
Where a zuripeshgi ijara deed contained the following clause ;
"It is desired that the ijaradars should enter into possession
and
occupation of the share let out in ijara (being the klzudkasht
land under his own cultivation), cultivate them, pay 2 as. as
reserved rent year after year to us, the executants, and appropriate the produce thereof year after year on account of his
having the ijara interest"
and
the
kabuliat
executed
by
the
tenant to whom the lands were leased by the mortgage for a
period of 3 years referred to the ijara deed and contained an
express provision that he (the tenant) would give up possession
of the tika land on the expiry of the lease without urging any
claim on the score that the lands were his kasht lands : Held,
confirming the decision of the High Courr, that the settlement
<.~was not a bona fide one and the successors of the tenant (the
defendants) did not acquire permanent rights of occupancy in
1952
April 14. ·
1952
Makabir Gope
and Others
v.
HM!Jans Narain
Singh
and Others.
776
SUPREME COURT REPORTS
[1952]
the
demised
lands under the Bihar Tenancy Act even though
the lands had been in the ocr:upation of the tenant and his successors for over 30 years after the expiry of the lease.
Held further, that the defendants could not acquire occupancy
rights under sections 20 and 21 of the Bihar Tenancy Act as the
mortgagee
was
neither a "proprietor"
nor
a "tenure holder ..
or
"under-tenure-holder"
3.nd
the
tenant
and
his
successors
were not,
therefore,
"settled
raiyats"
within
the
meaning
of
section 5, cl. (2), of the said Act.
Manjhil-Lal Biswanath Shah Dea v. Shaikh Mohiuddin (1.L.R.
24 Cal. 272), Babu Bairo Nath Ray v. Shanke Pahan (I.L.R. 8
Pat. 31) and Binda Lal Pakrashi and Others v. Kalu Pramanik
and Others (I.L.R. 20 Cal. 708) distinguished.
CrvrL
APPELLATE
JuRrsorsCTION
Civil
Appeal
-~
,.
•
No. 143 of 1951.
Appeal by special leave from the
judgment aod decree dated 23rd March, 1950, of the
High
Court of Judicature
at Patna
(Reuben
and
· ~
Jamuar JJ.) in appeal from Original Decree No. 206 of
1946 arising out of a decree dated 31st January, 1946,
of the Subordinate Judge at Patna in
Title Suit
No. 55/4 of 1943-45.
Saiyid Murtaza Faz/ Ali for the appellants.
N. C. Chatterjee (A. N. Sinha, with him) for the
respondents Nos. 1 to 9.
B. K. Saran for the respondents Nos. 11 to 16.
1952. April 14. The Judgment of the Court was
d

## Text

-·
S.C.R.
SUPREME COURT REPORTS
MAHABIR GOPE AND OTHERS
v.
HARBANS NARAIN SINGH AND OTHERS.
[MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR
and VIVIAN BosE JJ.l
775
Bihar Tenancy Act, 1937, ss. 5(2), 20, 21-Zuripeslzgi lease--
Lease .by mortgagee for a term of 3 years-Lease continuing in
possession for over 30 years-Whether acquires occupancy rights--
Construction of lease-Mortgagee's power to lease-Limitations--
Transfer of Property Act, (IV of 1882), s. 76 (a) and (e).
As a general rule a person cannot transfer or otherwise confer
a better title on another than he himself has and a mortgagee
cannot therefore
create
an
interest
in
mortgaged
property
which
will
enure beyond
the
termination
of his
interest as
mortgagee. Further, a mortgagee cannot during the subsistence
of the mortgage act in a manner detrimental to the mortgagor's
interestJ;, such as by giving a lease which may enable
the
tenant
to acquire permanent occupancy
rights in
the land, thereby
defeating the mortgagor's right to khas possession.
A permissible settlement by a mortgagee in possession with a
tenant in the course of prudent management and the springing
up of rights in the tenant conferred or created by statute based
on the nature of the land and possession for the requisite period
is an exception to the general rule, but to fall within this exception the settlement of the tenant by
the mortgagee must have
been a bona fide one.
The exception will not apply in a case
where the terms of the mortgage prohibit the mortgagee
from
making any
settlement of tenants on the land either
expressly
or by necessary implication.
Where a zuripeshgi ijara deed contained the following clause ;
"It is desired that the ijaradars should enter into possession
and
occupation of the share let out in ijara (being the klzudkasht
land under his own cultivation), cultivate them, pay 2 as. as
reserved rent year after year to us, the executants, and appropriate the produce thereof year after year on account of his
having the ijara interest"
and
the
kabuliat
executed
by
the
tenant to whom the lands were leased by the mortgage for a
period of 3 years referred to the ijara deed and contained an
express provision that he (the tenant) would give up possession
of the tika land on the expiry of the lease without urging any
claim on the score that the lands were his kasht lands : Held,
confirming the decision of the High Courr, that the settlement
<.~was not a bona fide one and the successors of the tenant (the
defendants) did not acquire permanent rights of occupancy in
1952
April 14. ·
1952
Makabir Gope
and Others
v.
HM!Jans Narain
Singh
and Others.
776
SUPREME COURT REPORTS
[1952]
the
demised
lands under the Bihar Tenancy Act even though
the lands had been in the ocr:upation of the tenant and his successors for over 30 years after the expiry of the lease.
Held further, that the defendants could not acquire occupancy
rights under sections 20 and 21 of the Bihar Tenancy Act as the
mortgagee
was
neither a "proprietor"
nor
a "tenure holder ..
or
"under-tenure-holder"
3.nd
the
tenant
and
his
successors
were not,
therefore,
"settled
raiyats"
within
the
meaning
of
section 5, cl. (2), of the said Act.
Manjhil-Lal Biswanath Shah Dea v. Shaikh Mohiuddin (1.L.R.
24 Cal. 272), Babu Bairo Nath Ray v. Shanke Pahan (I.L.R. 8
Pat. 31) and Binda Lal Pakrashi and Others v. Kalu Pramanik
and Others (I.L.R. 20 Cal. 708) distinguished.
CrvrL
APPELLATE
JuRrsorsCTION
Civil
Appeal
-~
,.
•
No. 143 of 1951.
Appeal by special leave from the
judgment aod decree dated 23rd March, 1950, of the
High
Court of Judicature
at Patna
(Reuben
and
· ~
Jamuar JJ.) in appeal from Original Decree No. 206 of
1946 arising out of a decree dated 31st January, 1946,
of the Subordinate Judge at Patna in
Title Suit
No. 55/4 of 1943-45.
Saiyid Murtaza Faz/ Ali for the appellants.
N. C. Chatterjee (A. N. Sinha, with him) for the
respondents Nos. 1 to 9.
B. K. Saran for the respondents Nos. 11 to 16.
1952. April 14. The Judgment of the Court was
delivered by
CHANDRASEKHARA
ArYAR J.-This is an appeal by
the defendaots from a decree of the Patna High Court
reversing a decree of 'the Subordinate Judge's Court
·at Patna, and decreeing the plaintiffs' suit for possession against the
defendant first party who may be
called for the sake of convenience as 'the Gopes'.
The lands were k hudk has ht lands, partly belonging
to the plaintiffs first party and partly belonging to
Mussammet Aoaro Kuer, fn;>m whom the plaintiffs
second and "third parties trace title. The ancestors of
plaintiffs first party gave on 28-9-1899 an ijara with
possession to one Lakhandeo Singh an ancestor of the
·defendant second party under Exhibit I (b) for a term
.•
>.
'
S.C.R.
SUPREME COURT REPORTS
777
-0f six years from 1307 Fasli to 1312 Fasli for Rs. 540.
The poshgi money was to be repaid in one lump sum
at the end of Fasli 1312. If there was no redemption
then the ijara was to continue in force till the money
was repaid.
M ussammat Anaro Kuer gave her share
in ijara to the same Lakhandeo Singh orally on 10th
June, 1905, for a period of three years for Rs. 542.
Lakhandeo Singh, who is represented now
by the
<lefendant second party, made a settlement of the land
thus got by him (8.26 acres or 13 bighas in all) with
one Ram Lal Gope an ancestor of the defendant first
party for a period of three years from Fasli 1315 to
Falsi 1318.
There
was a patta in favour
of
the
tenant and a Kabuliyat in favour of the landlord. This
was in 1908.
The mortgage was redeemed
in June
1942 by payment in proceedings under section 83 of
the
Transfer
of Property Act, When
the plaintiffs4
went to take
possession, they were resisted by
the'
Gopes (defendant first party), and after unsuccessful
criminal proceedings,
the plaintiffs filed
the
present
suit.
The Subordinate
Judge dismissed it,
holding
that the Gopes were raiyatJ having
acquired
permanent occupancy rights in the'. lands as the result of the
settlement by the mortgagee, Lakhandeo Singh. On
appeal the High Court set aside this decision and gave
the plaintiffs a decree for possession on the
finding
that the defendants were not raiyats and had no permanent rights of occupancy. This court granted to
the defendants special leave to appeal.
The suit was in the alternative for recovery of the
value of the lands as compensation or damages from
the defendant second party jn case it was found that
the defendant first party could not be ejected.
The
trial court decreed this alternative claim and awarded
to the plaintiffs compensation at the rate of Rs. 200
per bigha.
The defendant second party carried the
matter in appeal
to the High Court and succeeded.
But we have nothing to do with this matter in the
present appeal.
At the trial, the plaintiffs alleged and maintained
that the lands were their zirat lands within the meaning
1952
Mahabir Gope
and Others
v.
H arhans Narain
Singh
and Others.
Chandrasek harp
Aiy~r /.
t9'i2
·..;;:.;_,;_
Mahabir dope
and Others
v.
llarbans "l\f arain
Singh
and Others.
-·-
Chatidrasekhara
Aiyat' /.
778
SUPREME COURT REPORTS
[1952]
of section 116 of the Bihar Tenancy Act and that the defendant first party could acquire no rights of occupancy
in the same.
The Subordinate Judge found against
this contention and held that they were khud kasht or
bal(asht fands of the proprietor, in which rights of
occupancy can be acquired.
He negatived the plea of
the defendants
that they were their ancestral raiyats
lands;
He also held that there was no collusion between the mortgagee Lakhandeo Singh and Ram Lal
Gope in the matter of settlement of lands.
It is on
the basis of these findings which were accepted by
both
the
parties
that the hearing of the appeal
proceeded before the High Court.
It ·was held by the Privy Council in Bengal Indigo
Company v. Roghobur Das('). that "a zuripeshgi lease
·~ is not a mere contract for the cultivation of the land
'tat a rent, but is a security to the tenant for the money
· advanced". They . observed,
speaking
of
the leases
before them, that "the leases in question were
not
mere contracts for the cultivation of the land let; but
that they were
also intended to. constitute, and
did
constitute, a real and valid security to the tenant for
the principal sums which he had advanced, and interest
thereon.
The tenants' possession under
them
was, in part at least, not that of cultivators only, but
that of creditors operating repayment of the debt due
to them,
by means pf their security."
These words
·apply to the ijara deed before us; its dominant intention was to provide a security for the loan advanced
·and not to bring into existence any relationship of
landlord and tenant.
.
The general, rule is that a person cannot by transfer
or otherwise confer a better title on another than he
himself has..
A mortgagee cannot, therefore, create an
. interest in the mortgaged property which will enure
beyond the termination of
his interest as mortgagee.
Further, the mortgagee,
who takes possession of the
mortgaged property,
must manage it as a person of
ordinary prudence would manage it if it were his own;
and he must not commit any act which is destructive
(1) (1897) 24 Cal. 272.
"~
' '
•
--
1'
S.C.R.
SUPREME COURT REPORTS
779
()t permanently injurious to the property; ;ee
section
76, sub-clauses (a) & (e) of the Transfer of Property
Act.
It follows that he may grant leases not extending beyond the period of the mortgage;
any leases
granted by hini must come to an end at redemption.
A mortgagee cannot during the subsistence
of
the
mortgagee act in a manner detrimental to the mortgagor's interests
such as by giYing a lease which may
enable the tenant to acquire permanent or occupancy
rights in the· land thereby defeating the
mortgagor's
right to khas possession; it would be an act which
would fall within the provisions
of
section 76, subdause ( e), . of the Transfer of Property Act. ·
A permissible settlement by a m()rtgagee in posses~
sion with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statut.e based on the nature of the
land and possession for the requisite period . is a differerit matter
altogether.
It is an exception · to the
general rule.
The tenant cannot be ejected. by the
mortgagor even after the redemption of the mortgage.
fie may become an occupancy raiyat in some cases
and a non-occupancy raiyat in other cases.
But the
settlement of the tenant by the mortgagee must have
been a bona fide one. This exception will not apply in
a case where the terms of the mortgage prohibit the
mortgagee from making any settlement of tenants
on
the land either expressly or by necessary implication.
Where .all the zamindari rights are given
to
the
mortgagee, it may be possible to infer on the proper
construction of the document that he can settle lands
with tenants in the ordinary course of management and
the tenants might acquire certain rights in the land in
their capacity
as tenants. In the case of Manjhil-Lal
Biswa Nath Shah Deo v. Sheikh Mohiuddin (1), there
was a bona fide settlement of mortgaged rayati land by
the mortgagee with tenants and it was held that the
mortgagor was not entitled to evict them after redemption.
The earlier decision of Babu Bhairo Nath Ray
v. Shanke Pahan(2), related
to bakasht lands, and
(1) (1927) 8 Pat. L.T. 92.
(2) (1929) I.L.R. 8 Pat. 31.
-··
.... ,.,-.-.1 ··r.
Mahabir Gopi
ana Otlteri
'Ve
'
\
H arbans ·Narain
Sif!gh
and Others:
1952
M4habir Gope
anrl Others
Y.
lfarbans !Varain
Singh.
and, Others.
Chandrasek.hara
Aiyar 1780
SUPREME COURT REPORTS
[1952]
there was no provision in the zuripeshgi lease restricting the power of the mortgagee lessee as regards settlement of tenants.
Khudkasht lands and bakasht lands
are
really in the nature of raiyati lands which come
into the possession
of the
proprietor by
surrender,
abandonment or purchase.
In the present case, we have the following clause in
the ijara deed:
"It is desired that the ijaradar should
enter
into possession and occupation of the share
let out in ijara (being the Khudkasht land under his
own
cultivation),
cultivate them, pay 2 annas
as
reserved rent year after year to us, the
executants,
and appropriate the produce thereof
year after year on
account of his having the ijaradari interest."
This
term disentitles the mortgagee from
locating
tenants
on the land mortgaged.
Ram Lal Gape, the grandfather of the defendants first party, who executed the
kabuliat in 1908 must have known of
the
title
of
Lakhandeo Singh the mortgagee and the terms under
which he held the lands under the registered
zuripeshgi ijara deed and this is most probably why the
tenant not only took the lease for a period of 3 years,
but expressly undertook to
give up possession over
the thika lands on .the expiry of the period of lease
without urging any claim on the score that the lands
were his old kasht lands. His kabuliat (Exhibit 11) in
fact
refers
to Lakhandeo Singh' s ijaradari interest.
In view of these facts, .the learned Judges of the High
Court stated that they were not prepared to hold that
the settlement was a bona fide one or the
mortgagee
was within llis rights in settling these lands.
Strong reliance was placed for the appellants on the
Full Bench decision -Binad Lal Pukrashi and Others v.
Kalu Pramanik and OtMrs(') where it was held
that
a person inducted into possession of land as a raiyat
even by a trespasser became a non-occupancy
raiyat
within the meaning of section 5, sub-section, 2 of the
Bengal Tenancy
Act and was protected from ejectrnent.
But
this decision
has
been subsequently
(1) (1893) I.L.R. 20 Cal. 708.
,.
S.C.R.
SUPREME COURT REPORTS
781
explained away in several cases as based on the propo--
sition that the rights must have been bona fide acquired
by them from one whom they bona fide
believed
to
have the right to let them into possession of the land.
Such, however, is not the case here, in view of the
recitals in the ijara deed in favour of Lakhandeo Singh
and the kabuliat by Ram Lal Gope.
Sections 20 and 21 of the Bihar Tenancy Act were
referred to by the learned counsel for the appellants
in the course of his arguments and he pointed out that
the land in this case was held continuously by
his
clients and their predecessors from 1908 to 1942, when
they were sought to be ejected. For these sections to
apply, we must be in
a position to hold that
the
appellants
were "settled
raiyats".
"Raiyats"
1s
defined in sub-clause 2 of section 5 as meaning "primarily a person who has acquired a right to hold land
for the purpose of cultivating
it
by himself or by
members of his family ...... " Sub-clause 3
provides
that a person shall not be deemed to be a raiyat unless
he holds land either immediately under a
proprietor
or
immediatelv
under a tenure-holder.
Lakhandeo
Singh was not' a "proprietor" by which term is meant
a person owning, whether in trust or for his own
benefit, an estate or part of an estate: he was only a
mortgagee. Nor was he a tenure-holder or under-tenureholder, as he does not comply
with
the definition
given in sub-clause (1) of section 5, namely, a
person
·who had acquired from a proprietor or from another
tienure-holder a right to hold land for the purpose of
collecting rents, or for the purpose of bringing the
land under cultivation by establishing tenants
on
it.
Such proof as there is in this case only goes to show
that the
lands were
under
the cultivation
of
the
plaintiffs and that they were made over to the possession of the mortgagee so that he might cultivate them
himself.
Hence, Ram Lal Gope could not claim that
he was a settled raiyat of the village and that under
the statute he secured occupancy rights in the
lands
which he took on lease from Lakhandeo Singh.
1952
Mahabir Gope
and Others
v.
llarbans lllarain
Singh
and Others.
Chandrasekhara
Aiyar /.
1952
Mahabir Gape
and Others.
v.
Harbans Narain
Singh
and Others.
Chandrasek_hara
· Aiyar /.
1952
April 2.
782
SUPREME COURT REPORTS
[1952]
Lastly, it was urged that the ijara by Mst. Anaro
Kuer was admittedly an oral transaction
and there
was no proof of any prohibition against the settlement
with
tenants
so far as her share (3.97 acres)
was
concerned and that the rights of the parties as regards
this area .would stand on a different footing from
the
rights in respect of the 4 acres and 29 cents belonging
to the plaintiff first party.
This point was not taken
in the courts below where the two ijaras given to
Lakhandeo Singh were dealt with as if they were part
and parcel of one and the same transaction, the rights
and liabilities, whatever they were, being common
to
both. We cannot allow the poiilt to be taken now.
The result is that the High:
Court's
decree
1s.
confirmed and the appeal is dismissed with: costs of
the plaintiffs-respondents. There will be no order as;
to costs of the other respondents.
Appeal dismissed.
Agent for the appellants: S. P. Varma.
Agent for the respondents Nos. 1 to 9: M. M Sinha.
Agent
for the
respondents Nos.
11 to
16 :.
K_. L. Mehta.
RAJA BHUPENDRA NARAIN SINGHA BAHADUR
ti.
MAHARAJ BAHADUR SINGH AND OTHERS
(Civil Appeals Nos. 68 to 92 of 1951).
[MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR
and V 1v1AN Bo SE JJ.]
Equitable set-off-Suit by patnidar against zemindar for possession of land with mesne f"ofits-Decree t"n favour of patnidarClaim by 'zemindar to set off against m.esne profits rent_, revenue and·
cesses which accl'ited after deUvCry of t:ossession-Maintainability.
: Where a patnidar has obtained a decree against his zcmindar ·
for' possessiori .of reSU1ned challkld?ri chakran lands with mesnc
profits from· the date on which · the zemihdar wrongfully took.
\.
1