# PRATAP CHAND v. RAM NARAYAN AND ANOTHER

- **Citation:** [1961] 3 S.C.R. 913
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** P. B. Gajendragadkar, K. N. WANOHoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pratap-chand-v-ram-narayan-and-another-1946
- **Pages:** 10

## Headnote

Mo1tgoge-Entire proprietary rights mortgaged-Sir lands not
mentioned-If included in the mortgage-Other londs of the mortgagor coming ifltn mo•tgagee's pos<ession, if accession to the mortgage
-Transfer of Propert:• Act, I882 (4 of i882). s. 70.
One Ramr.handar e]iecuted a simple mortgage deed without
possession of his share in the property in dispute in favour of the
respondents and others the relevant portion of which ran thus:-
"I do hereby mortgage without possession half share. five
annas and four pies, area 678·31 acres, jama · sarkar Rs. 326/10/8
together with Khudkashat,. chhc.taghas, big shrubs, abadi, gair
abadi, cultivated and that lying vacant, and the rights and
privileges appertaining to water, forests, chahat, gardens, and
right of cultivation, malguzari and trees of every kind whether
giving fruits or no fruits and prohibited and unprohibited wood
with entire rights and privileges appertaining to the village."
After the mortgage Ramchandar's share was sold to the
appellants and certain other lands recorded in Ramchandar's
mother's name also came into the possession of the appellant.
The main questions arising for decision were whether the
mortgage included the sir land of Ramchandar and whether the
other lands corning into the possession of the appellant were
accession to the mortgage.
Held, that as the mortgage deed stood it was a mortgage of
all the proprittary rights in the mortgagor's share in the property
including the proprietary right in the sir pertaining to that share.
As the mortgage was without possession the mortgagor was
not losing possession of his sir and it was· not necessary for him to
make an application under s. 50 of the Central Provinces Tenancy
Act relating to the reservation of a right of occupancy.
Sections 49 and 50 come into play when the propriet.or making a
transfer loses his right to occupy any portion of his sir land
temporarily or permanently.
Although in the plaint of the suit based on the mortga~e no
mention was made of sir, the entire proprietary right m sir,
kliudkashat etc. relating tn the mortgagor's share would be sold on
a decree passed in the suit.
The words " all rights pertaining to the share " appearing in
the sale certificate following the execution of the decree in the
mortgage suit passed in favour of the respondents would include
the mortgagor's proprietary rights in the sfr land and the respondents by their sale certificate would get a right in the sir
land also.
Ftb1uary aa.
Pratap Chand
v.
Ram Narayan
914
SUPREME COURT REPORTS
[1961]
As the appellant had purchased the entire share of Ram.
chandar who was later ejected from his ex-proprietary tenancy
which came into the possession of the appellant as lambardar
his sir land which thus .came into the appellant's possession while
the mortgage was subsisting became an accession to the mortgage
under s. 70 of the Transfer of Property Act and the mortgagees
were entitled to half share in the lands which came into the
appellant's possession.
The lands recorded nominally in the name of
Ramcha~dar's
mother but in the actual possession of the former having also
came into the possession of the appellant as lambardar were held
by him for the entire body of proprietors and the respondent
would be entitled to a share in them. The respondent's claim to
those lands were not barred by 0. II, r. 2 of the Code of Civil
Procednre merely because they were not mentioned in the plaint
of the mortgage suit.
Hazarilal v. Hazarimal, A.LR. 1923 Nag. 130 and Seth
Manakchatld v. Chaube Manohar Lal, A.LR. 1944 P.C. 46, held not
applicable.
CIVIL Al'PELLATE JURISDICTION: Civil AppPal No.
272of1956.
·Appeal from the judgment and decree dated
June 28, 1954, of the former Nagpur High Court, in
First Appeal No. 107 of 1946.
M. O. Betalvad, Attmmy-General for lrul,ia, Purslwtfam Trikamdas, 8. T. Kkirwadkar and I. N. Shroff for
the appellant.
Achhru Ram, A. R. Okaubey and N aunit Lal for the
respondents.
1961. February 22. The Judgment of the Court

## Text

3 S.C;R.
SUPREME COURT REPOR'fS
913
PRATAP CHAND
v.
RAM NARAYAN AND ANOTHER.
(P. B. GAJENDRAGADKAR, and K. N. WANOHoo, JJ.)
Mo1tgoge-Entire proprietary rights mortgaged-Sir lands not
mentioned-If included in the mortgage-Other londs of the mortgagor coming ifltn mo•tgagee's pos<ession, if accession to the mortgage
-Transfer of Propert:• Act, I882 (4 of i882). s. 70.
One Ramr.handar e]iecuted a simple mortgage deed without
possession of his share in the property in dispute in favour of the
respondents and others the relevant portion of which ran thus:-
"I do hereby mortgage without possession half share. five
annas and four pies, area 678·31 acres, jama · sarkar Rs. 326/10/8
together with Khudkashat,. chhc.taghas, big shrubs, abadi, gair
abadi, cultivated and that lying vacant, and the rights and
privileges appertaining to water, forests, chahat, gardens, and
right of cultivation, malguzari and trees of every kind whether
giving fruits or no fruits and prohibited and unprohibited wood
with entire rights and privileges appertaining to the village."
After the mortgage Ramchandar's share was sold to the
appellants and certain other lands recorded in Ramchandar's
mother's name also came into the possession of the appellant.
The main questions arising for decision were whether the
mortgage included the sir land of Ramchandar and whether the
other lands corning into the possession of the appellant were
accession to the mortgage.
Held, that as the mortgage deed stood it was a mortgage of
all the proprittary rights in the mortgagor's share in the property
including the proprietary right in the sir pertaining to that share.
As the mortgage was without possession the mortgagor was
not losing possession of his sir and it was· not necessary for him to
make an application under s. 50 of the Central Provinces Tenancy
Act relating to the reservation of a right of occupancy.
Sections 49 and 50 come into play when the propriet.or making a
transfer loses his right to occupy any portion of his sir land
temporarily or permanently.
Although in the plaint of the suit based on the mortga~e no
mention was made of sir, the entire proprietary right m sir,
kliudkashat etc. relating tn the mortgagor's share would be sold on
a decree passed in the suit.
The words " all rights pertaining to the share " appearing in
the sale certificate following the execution of the decree in the
mortgage suit passed in favour of the respondents would include
the mortgagor's proprietary rights in the sfr land and the respondents by their sale certificate would get a right in the sir
land also.
Ftb1uary aa.
Pratap Chand
v.
Ram Narayan
914
SUPREME COURT REPORTS
[1961]
As the appellant had purchased the entire share of Ram.
chandar who was later ejected from his ex-proprietary tenancy
which came into the possession of the appellant as lambardar
his sir land which thus .came into the appellant's possession while
the mortgage was subsisting became an accession to the mortgage
under s. 70 of the Transfer of Property Act and the mortgagees
were entitled to half share in the lands which came into the
appellant's possession.
The lands recorded nominally in the name of
Ramcha~dar's
mother but in the actual possession of the former having also
came into the possession of the appellant as lambardar were held
by him for the entire body of proprietors and the respondent
would be entitled to a share in them. The respondent's claim to
those lands were not barred by 0. II, r. 2 of the Code of Civil
Procednre merely because they were not mentioned in the plaint
of the mortgage suit.
Hazarilal v. Hazarimal, A.LR. 1923 Nag. 130 and Seth
Manakchatld v. Chaube Manohar Lal, A.LR. 1944 P.C. 46, held not
applicable.
CIVIL Al'PELLATE JURISDICTION: Civil AppPal No.
272of1956.
·Appeal from the judgment and decree dated
June 28, 1954, of the former Nagpur High Court, in
First Appeal No. 107 of 1946.
M. O. Betalvad, Attmmy-General for lrul,ia, Purslwtfam Trikamdas, 8. T. Kkirwadkar and I. N. Shroff for
the appellant.
Achhru Ram, A. R. Okaubey and N aunit Lal for the
respondents.
1961. February 22. The Judgment of the Court was
delivered by
·
Won.Ano J.
W ANOHOO, J,:_This is an appeal on a certificate
granted by the Nagpur High Court. The brief facts
necessary for present purposes are these. One Ram.
chandar Jat originally owned Annas -10/8 share in
Mauza Tamala.wadi while the rest belonged to others.
Ramchandar executed a simple mo~tgage deed on
July 27, 1920, in favour of Seth ltam Jiwan and two
minors Ram Narain and Radhey Sham. The plaintiffs.
respondents are the representatives of the mortgagees.
On August 27, 1926, the defendant-appellant purchased
~11&8 ./5/4 share belonging to the other shareholders
in the village, Thereafter, the appellant brought a
3 S.C.R.
SUPREME COURT REPORTS
915
suit against Ramchanda.r who was lamba.rda.r of the
village for profits, in which a decree was passed
against Ra.mchanda.r. In execution of that decree the
appellant purchased the entire Annas -/10/8 share of
Ra.mchandar in the village a.bout the year 1932. In
consequence, the appellant became the owner of the
entire village subject to the mortgage of the respondents on Annas -/5/4 share therein. On July 27, 1932,
the respondents sued Ra.mchandar on the ha.sis of their
mortgage-deed and a preliminary decree for sale was
passed in March, 1937. To this suit the appellant was
also a party. The preliminary decree was followed
by a final decree and thereafter the property was put
to sale and was purchased by the respondents on
March 1, 1940. This sale was confirmed on April 12,
1940, and a. sale certificate was granted to the respondents. So, by the year 1940 the respondentil were the
owners of Annas · /5/4 share in the village while the
appellant was the owner of Annas -/10/8 share. The
appellant was also a lamba.rdar.
Ramcha.nda.r J at held sir land in certain khasras
with a total area of 252·49 acres. On the sale of
Ramchandar's share to the appellant, Ramchanda.r
became an ex-proprietary tenant of his sir land.
Thereafter Ramcha.ndar was ejected from his exproprietary tenancy sometime in 1936 and the .Jands
came into possession of the appellant. There were
certain other lands which were nominally recorded as
Mua.fi Khairati in the name of Ramchanda.r's mother
but were actually in the possession of Ramcha.ndar.
It appears that Ra.mchandar was ejected from these
lands also and they ca.me into the possession of the
appellant. Further the appellant as a lamba.rda.r ca.me
into possession of certain other lands by surrender or
otherwise.
The respondents filed a suit for pattition before the
Sub-Divisional Officer, Ha.rda, in 1942. In that suit
they claimed hi.If share in the lands of Ramchandar
and his mother which came into the possession of the
appellant. They also claimed a share in other lands
which came into the possession of the appellant as
la.mbardar. Their 9ase was that these lands w.ere
Jl1
•I96t
Pratap ChaN4
v.
Ram Na1aya
Wanchooj.
Piaiap Cha1Jd
v.
··flam Narayan
Wanchoo ].
916
SUPREME COURT REPORTS
[1961]
accession to the mortgage in their ·favour and they
were therefore entitled to a proper share in them.
This cla.im was resisted by the appellant before the
Sub-Divisional Officer.
On October 20, 1943, the SubDivisional Officer passed an order which in effect
zyjected the contention of the respondents and accept~
ell·the plea of the appellant.
Thereupon the respondents filed the present suit for
a declaration in the civil court in 1944 claiming that
they were entitled to a proportionate share in the
lands specified in the plaint. The suit was resisted by
the appellant and his contention .was that the respondents had purchased specific khudkashat and chhotaghas
plots and that they therefore could not be allowed
anything more than what was mentioned in the decree
and the sale certificate which were the basis of their
title. As the specific lands with respect to which the
respondents claimed a declaration in this suit were not
mentioned in the sale certificate, they were not entitled
to any share in them. A large number of issues were
framed by the trial court, which decreed a part of the
claim put forward by the respondents· but dismissed
the rest. Consequently, the respondents went up in
appeal to the High Court. The appeal was allowed so
far as the respondents' claim to one-half share in the
sir plots held by Ramchandar was concerned. Further,
they were allowed one-third share in the hmds held by
the mother of .Ramchandar and also in certain other
lands which came into the possession of the appellant
as lambardar subject to payment of certain amounts.
This was followed by an application by the appellant
for leave to appeal to this Court and a certificate was
granted by the High Court. That is how the matter
has come up before us.
The main contention of the appellant before us is
that the mortgage deed of 1920 which is the basis of
the title of the respondents did pot jnclude the sir
plots in the possession of Ramchandar nor the plots
of Ramchandar's mother.
Nor were these plots
included in the suit which was brought by the respondents on the basis of the mortgage-deed. Further, the
sale certificate also did not include these plots, though
•
3 S.C.R.
SUPREME COURT REPORTS
917
some other plots were mentioned therein. Therefore,
the respondents were not entitled to these plots as
accession to the mortgage.
This bringR us to a consideration of the mortgage in
favour of the respondents. The mortgage was without
possession and the property mortgaged was mentioned
in these terms :
" I do hereby mortgage without possession half
share . /5/4, five annas and four pies, area 678-ill
acres, jama-sarkar Rs. 326/10/8 together with khud·
kashat, chhotaghas, big shrubs, abadi, gair abadi, cultivated and that lying vacant, and the rights and privileges
appertaining to water, forests, chahat, gardens, and
right of cultivation, malguzari and trees of every kind
whether giving fruits or no fruits and proJtibited and
unprohibited wood with entire rights and privileges
appertaining to the village."
It will be seen that what was mortgaged was the
entire half share of Ramchandar. in -/ 10/8 share which
he owned in the village. It istrue that the mortgage
goes on to describe certain othllr things but that in our
opinion is merely by way of precaution, for even if
the part underlined* was not there in the mortgage,
the respondents being the mortgagees of -/5/4 share
would be entitled to everything contained in that
share. The underlined* part of the mortgage therefore
does not cut down· the amplitude of the mortgage
with respect to the entire -/5/4 share out of-/10/8
share of 'Ramchandar. It is true that· sir is not
specifically mentioned in the mortgage but as the mort1 gage was of the entire -/5/4 share out of -/10/8 share
it will include (unless there "is a specific exclusion of
sir) the area of sir also pertaining to the share mortgaged. In this connection our attention was drawn to
ss. 68 and 69 of the Central Provinces Land Revenue
Act, No. II of 191:7, which was in force at the relevant
time. Section 68 deals with sir land and s. 69 with
kkudkashat. Sir is defined in s. 2 ( 17) and khudkashat
is defined in s. 2 (5) as " that part of the home-farm of
a mahal which is cultivated by the proprietor as such
and which is not sir land. " Thus though sir land
may be a part of the home-farm it is a different entity
•Here printed in italics.
Pratap Chand
v.
Ram Narayan
Wanchoo ].
1961
P••laP Chand
v.
Ram Narayan
W amhoo J.
918
SUPREME COURT itEPORTS
[1961]
from khU!lkashat land. Reference was also made to
ss. 49 and 50 of the Central Provinces Tenancy Act,
No. I of 1920 (hereinafter called the Tenancy Act),
which deal with transfer of sir land. Under s. 49 (1) a
proprietor who temporarily or permanently loses
whether under a decre.e or order of a civil court or by
transfer or otherwise his right to occupy any portion
of his sir land as a proprietor shall at the date of such
loss, become an occupancy tenant except where he
has obtained a sanction under s. 50 of the Tenancy
Act. Further under s. 49 (2) there is a prohibition on
the registration of documents which purport to
transfer all the rights of a proprietor in his sir land
without reservation of the right of tenancy specified in
sub-s. (I). It is urged for the appellant that the reason
why sir land was not mentioned in the mortgage deed
of 1920 was that otherwise sanction of the Revenue
Officer would have been required under s. 50 of the
Tenancy Act. Nows. 50 provides that if a proprietor
desires to transfer the proprietary rights in any part
of his sir without reservation of a right of occupancy
specified ins. 49(1) he may apply to the Revenue Officer
and if such Revenue Officer is satisfied that the transferor is not wholly or mainly an agriculturist or that
the property is self-acquired or has been acquired
within the twenty yea.rs last preceding, he shall sanction the transfer. Sections 49 and 50 in our opinion
only come into play when the proprietor making a
transfer loses his right to occupy any portion of his sir
land temporarily or permanently and sanction has to
be obtained under s. 50 only where the transfer is to be ,
made without reservation of t1:te right of occupancy.
Bnt the mortgage in this case is a simple mortgage and there was no transfer of possession under it.
Therefore the proprietor Ramchandar never lost his
right to occupy his sirland by this mortgage and there
was therefore no necessity for him to make any reservation in that respect or to apply for sanction under
s. 50, for he was not losing the right to occupy his sir
at all. But that does not mean that when he mortgaged his entire share of -/5/4 out of -/10/8 share, he
was excluding from the mortgage the area of sir
3 S.C.R.
SUPREME COURT REPORTS
919
corresponding to the share mortgaged. As the mortgage deed of 1920 stands, it is a mortgage of all the
prop)'ietary rights in -/5/4 . share including the proprietary right in the sir pertaining to that share ; but
as the proprietor was not losing his right to occupy
the sir land, the mortgage being without possession, it
was not necessary for him to make any application
under s. 50 of the Tenancy Act. We are therefore of
opinion that the appellant cannot take advantage
in the circumstances of the fact that no application
was made under s. 50 of the Tenancy Act and therefore there was no effect of this mortgage on the sir
rights. As we read the mortgage it clearly affected
the sir.right also pertaining to -/5/4 share and it was
not necessary to make an application under s. 50 of
the Tenancy Act, for the mortgagor wp.s not losing
possession of his sir and there would be n:b question of
any ex-proprietary tenancy arising in his favour, to
relinquish which he would have to apply under s. 50.
Turning now to the plaint in the mortgage suit we
find that the property subject to. the mortgage is
mentioned in para. 2 thereof in exactly the same terms
as in the mortgage deed. In para. 13 it is again recited
that the mortgagor mortgaged -/5/4 share out of his
-/10/8 share. Paragraph 13 then goes on to say that on
the date of the mortgage, the mortgagor had certain ·
khudkashat and chhotaghas lands and both cultivating
and proprietary rights in them pertaining to half
share only were liable to be sold. No mention was
made of sir in this paragraph. But that in our opinion
was not necessary, for the mortgage included the
mortgage of sir land also pertaining to -f5/4 share
though without possession. The prayer in the suit
was for sale of the mortgaged property together ,with
khudkashat, etc. ; but this again was a mere matter of
precaution, for in any case the entire propriet.ary right
in sir, khudkashat, etc., relating to -/5/4 share would be
sold on a decree following on the mortgage ..
Then coming to the sale certificate we find that it
certifies that the respondents had purchased -/5/4
share in the village with abadi, khudkashat, chhot,agha&
and all rights pertaining to the share. It is true that
Pratap Cltand
v.
Ram Naroy•n
1961
Pratap Chand
v.
Ram Narayan
Wanclaoo ].
920
SUPREME COURT REPORTS
[1961]
khudkashat and chhotaghas are specifically mentioned
in the sa.le c~tificate but the words "a.ll rights
pertaining to the share" appearing in the sa.le certificate would include such proprietary rights in the sir
land as belonged to the share mentioned in the sale
certificate. We are, therefore, of opinion tha.t so far
as sir la.nd is concerned, the proprietary right in it
pertaining to -/5/4 share was mortgaged a.nd the
respondents by their sale certificate got a right in the
sir la.nd also.
Now what happened after the mortgage deed in
favour of the respondents was that . the a.ppella.nt
purchased the entire -/10/8 share of Ra.JY\chanda.r
subject to the mortgage of the respondents in 1932. At
that time Ramcha.nda.r became an ex-proprietary
tenant of his entire sir relating to this share under s. 49
of the Tenancy Act. In 1936 Ramchanda.r was ejected
from the ex-proprietary tenancy which came in the
possession of the appellant as Iambarda.r and ha.s
apparently since then remained in his possession. The
case of th.e respondents is that in 1936 their mortgage
was subsisting and the sir Ia.nd which thus came into
the possession of the appellant on the extinction of the
ex-proprietary tenancy became in accession to. the
mortgage and, therefore, they as mortgagees were
entitled to ha.If share in the lands which thus ca.me
into the possession of the appellant. We ha.ve a.lrea.dy
pointed out tha.t the mortgage covered the sir plots
also so fa.r a.s the proprietary rights in them were
concerned. Therefore, when Ramcha.ndar's ex-proprietary rights came to an end and the land came into
the possession of the appellant a.nd became khUdkashat,
the mortgage would cover this khudkashat land to the
extent of the mortgagees' share therein. It is true
that if Ramchandar's ex-proprietary tenancy ha.d continued, the mortgagee would have no right to a.sk for
ha.If share in it; but when the ex-proprietary tenancy
wa.s extinguished a.nd this land came in the. possession
of the la.mba.rdar (mortgagor) it wa.s a.n accession to
the mortgage under s. 70 of the Transfer of Property
Ac.t a.nd the mortgagees could claim a. share in it. It
was however urged that a.ooel!llion to be available to
3 S.C.R. . SUPREME COURT REPORTS
92'1
the mortgage must be a legal accession.
We however
see no illegality in the accession which took place.
There is also no doubt that the accession took place
when the mortgage was still subsisting. Therefore,
we agree with the High Court that on the ex-proprie·
tary tenancy being extinguished, the sir land which
would otherwise have remained in the exclusive possession of Rrrmchan<lar as an ex-proprietary tenant
became an accession to the mortgaged proper.ty and
the respondents would he entitled to half of it on their
purchasing the -/5/4 share in execution of the decree
on t.he mortgage. The fact that the rent of an exproprietary tenant is due to the person whose exproprietary tenant _he becomes by virtue of the sale or
mortgage with possession would make no <lifference
after ex-proprietary tenancy is extinguished, for on
such extinction the land would go to the entire
proprietary body and would thus in this case be an
accession to the mortgage to the extent of the share
mortgaged.
This brings us to the lands in the name of Ramchandar's mother. It appears that
these, lands
came into the possession of Ramchandar after the
mortgage but before the institution of the mortgage
suit. They were nominally recorded in the name of
his mother and ill 1932 after his entire share was
purchased by the appellant he was recorded as an
occupancy tenant of these lands. Later the appellant
came into possession of them apparently as a Iambardar. It is not clear when and how the appellant got
possession of them. There can be no doubt however
that his possession was for the entire body of proprietors and the respondents would be entitled to a
share in them. But it was urged that the claim of the
respondents to these lands was barred by 0. II, r. 2
of the Code of Civil Procedure, because they were not
specified in the plaint based on the mortgage deed of
1920. Reliance in this connection is placed on Hazai·ilal v. Hazarima/, (1) and Seth Manakchand v. Ghaube
Manoharla/, ('). These cases in our opinion do not
apply, because they are cases of foreclosure while in
!>I A.LR. 1944 P.C. 46,
Pratap Ch"11d
v.
Ram Narayan
U'anchoo J.
!·
Pratap Chand
v.
Rani ~\'arayan
lVa1'lchoo ].
922
SUPRE.\fE COURT REPORTS
[1961]
the present case the respondents' suit was for sale of
the share mortgaged with them. Further in the plaint,
when specifying the khudkashat plots it was made clear
that they were khudkashat on the date of the mortgage; the respondents thus did not specify the
khudkashat plots on the date of the plaint. Though
they had specified some plots in the plaint which were
mentioned in the sale certificate also, the snit was for
the sale of the entire -/5/4 share and that would
inclurle khudkashat lands pertaining to the share existing at the time when the suit was filed. It is not
necessary in a suit for sale to specify the lands in the
possession of the mortgagor specifically and they
would pass on sale along with the share sold. The
claim, therefore, would not be barred under 0. II, r. 2,
on the ground that these plots entered in the name of
the mother of H.amchandar were not ~pecifically mentioned in the plaint.
This leaves certain lands which came into the
possession of the appellant as a lambardar in the
ordinary conrne of management. The respondents
would clearly be entitled to a share in these lands also
on payment of proportionate expenses incurred by the
appellant in the course of suits in which he came into
possession. This is what the High Court has ordered
and we see no reason to disagree with that view.
The appeal, -therefore, fails and is hereby dismissed
with costs.
Appeal di.qmissed.