# S66 JAMSHED JAHAN BEGAM & ORS v. LAKHAN LAL & ORS

- **Citation:** [1970] 2 S.C.R. 566
- **Court:** Supreme Court of India
- **Decided:** 1969-09-25
- **Case number:** Civil Appeal No. 101& of 1966
- **Bench:** J. M. Shelat, C. A. Vaidial!Ngam, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s66-jamshed-jahan-begam-ors-v-lakhan-lal-ors-4888
- **Pages:** 15

## Headnote

B
U.P. Encumbered Estates Act (25 of 1934), ss. 14, 19 and 24, and
V.P. Zcmindari Abolition and Land Reforms Act (1 of 1951)-liecre.
under Encumbered Estates Act-If could be executed against bhumidhari
rights granted under the Abolition Act-Trees of debtor-When cottll ?e
proceeded against in execution.
The predecessors·in·interest of the appellants were
Iaodlord~ ownin~
;an estate including agricultural land, trees, groves etc., in U.P .. and were
heavily indebted to the respondents.
Most of the debts wer~ secured.
On the application of the landlords proceedings were taken under the U.P.
Encumbered Estates Act. 1934, ;nd a decree was passed under s. 14(7)
of the Act in favour of the respondents in 1938. The nature ru.J e~tc11t
of property liable to attachment and sale, as. required by s. I 9 ( 21 (b) of
ithe Act, _,vere furnished to the executing authority.
By virtue of a noti~
.fication under the U.P.
Zamind<..ri Abolition and Land Reforms Ac;.
1950, the estate vested in th.e State, and new rights, namely, bilumidhari
rights in the lands in the estate, were created in 1952 in favo11r .::f the
appellants who were the successors-in.interest of the landlords.
In 1959.
the respondents applied under s. 24 of the Encumbered Estat~s Act to
·recover the amount decreed to them, by proceeding against the bhumidhari
right~ and trees belonging to the appellants.
On the question whether: (1) the bhumidhari rights, and (2) the trees,
couid be proceeded against.
HELD :
(I) Though the respondents were mortgagees their rights
as sucn were exringurs.1ed under the .E::ncumbereJ Estates Act and the
dcc.ree in their favour under the Act was vnly a simple money ·decre~ \.Yhich
was not executable except under the provisions of the Act.
Under s. 24
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.execution can be levied from any property or rights, other than proprieF
.tary rights in land, which are reported under s. 19 as liable to be attached
and sold. On the passing of the U.P. Abolition Act the propri<'arY
rights of the landlords in the land vested in the State and thereafter, the
appellants had no proprietary ri$!:hts left in them.
The bhumidhari rights
being new rights created for the first time in favour of. the appellant:; under
the Abolition Act, are not proprietary rights.
In the present case, the
requirements of ss. 19 and 24 have been complied with, even though
the bhumidhari ri12:hts were not mentioned as bein~ liable to attachment
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.and sale. because, (i) under s. I9(2)(b) the requirement is only to report
tne nature and extent of the property liable to attachment and sale dOd
not the interests or rights: cf the debtor in the property; and (ii) the c!ec're~
unde.r the Encumbered Estates Act was passed in 1938 while the bliutni·
.dhari rights were created only in 1952, and hence, could not be spec.ificnllv
mentioned in the decree.
When the Encumbered Estates Act
p~rmit.;:
the respondents to levy execution against the property of the debtor othrt
than the proprietary riglits in land, and when there is no prohibition in
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the Abolition Act against execution of a decree obtained under the Encumbered E5tales Act, against the bhumidhnri ri~hts. the respondents \\'ere
.entitled to proceed a~ainst such ri~hts. [57$ A-13; 577 13-E; G; 578 A.Fl
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JAMSHED BEGAM v. LAKHAN (Vaidialingam, l.}
561
Rana Sheo Ambar Singh v. Allahabad Bank Ltd. [1962] 2. S.C.R.
441, followed.
(2) Under s. 6(a) of the Abolition Act and s. 3(6) of the ti.Pc
Tenancy Act, 1939, the right title and interest of intermediaries in trees
anu grove·land, but not in trees constituting a grove, cease, an<l vest
in the State.
Since the trees constituting a grove have not vested in the
State and could not have formed the subject of creation of bhumiJhc;ri
rights they are the debtor's property and, are Hable to be proceeded against
in execution under s. 24 of the Encumbered Estates Act.
Even if the
appellants got bhumidhari rights over the trees constituting the
gi:ove·,
they could be proceeded against because, bhunti

## Text

_Characters 0–39,792 of 42,327. This is a partial read: ask again with offset=39792 for what follows._

S66
JAMSHED JAHAN BEGAM & ORS.
v.
LAKHAN LAL & ORS.
September 25, 1969
[J. M. SHELAT, C. A. VAIDIAL!NGAM AND I. D. DUA, JJ.]
B
U.P. Encumbered Estates Act (25 of 1934), ss. 14, 19 and 24, and
V.P. Zcmindari Abolition and Land Reforms Act (1 of 1951)-liecre.
under Encumbered Estates Act-If could be executed against bhumidhari
rights granted under the Abolition Act-Trees of debtor-When cottll ?e
proceeded against in execution.
The predecessors·in·interest of the appellants were
Iaodlord~ ownin~
;an estate including agricultural land, trees, groves etc., in U.P .. and were
heavily indebted to the respondents.
Most of the debts wer~ secured.
On the application of the landlords proceedings were taken under the U.P.
Encumbered Estates Act. 1934, ;nd a decree was passed under s. 14(7)
of the Act in favour of the respondents in 1938. The nature ru.J e~tc11t
of property liable to attachment and sale, as. required by s. I 9 ( 21 (b) of
ithe Act, _,vere furnished to the executing authority.
By virtue of a noti~
.fication under the U.P.
Zamind<..ri Abolition and Land Reforms Ac;.
1950, the estate vested in th.e State, and new rights, namely, bilumidhari
rights in the lands in the estate, were created in 1952 in favo11r .::f the
appellants who were the successors-in.interest of the landlords.
In 1959.
the respondents applied under s. 24 of the Encumbered Estat~s Act to
·recover the amount decreed to them, by proceeding against the bhumidhari
right~ and trees belonging to the appellants.
On the question whether: (1) the bhumidhari rights, and (2) the trees,
couid be proceeded against.
HELD :
(I) Though the respondents were mortgagees their rights
as sucn were exringurs.1ed under the .E::ncumbereJ Estates Act and the
dcc.ree in their favour under the Act was vnly a simple money ·decre~ \.Yhich
was not executable except under the provisions of the Act.
Under s. 24
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.execution can be levied from any property or rights, other than proprieF
.tary rights in land, which are reported under s. 19 as liable to be attached
and sold. On the passing of the U.P. Abolition Act the propri<'arY
rights of the landlords in the land vested in the State and thereafter, the
appellants had no proprietary ri$!:hts left in them.
The bhumidhari rights
being new rights created for the first time in favour of. the appellant:; under
the Abolition Act, are not proprietary rights.
In the present case, the
requirements of ss. 19 and 24 have been complied with, even though
the bhumidhari ri12:hts were not mentioned as bein~ liable to attachment
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.and sale. because, (i) under s. I9(2)(b) the requirement is only to report
tne nature and extent of the property liable to attachment and sale dOd
not the interests or rights: cf the debtor in the property; and (ii) the c!ec're~
unde.r the Encumbered Estates Act was passed in 1938 while the bliutni·
.dhari rights were created only in 1952, and hence, could not be spec.ificnllv
mentioned in the decree.
When the Encumbered Estates Act
p~rmit.;:
the respondents to levy execution against the property of the debtor othrt
than the proprietary riglits in land, and when there is no prohibition in
H
the Abolition Act against execution of a decree obtained under the Encumbered E5tales Act, against the bhumidhnri ri~hts. the respondents \\'ere
.entitled to proceed a~ainst such ri~hts. [57$ A-13; 577 13-E; G; 578 A.Fl
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B
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JAMSHED BEGAM v. LAKHAN (Vaidialingam, l.}
561
Rana Sheo Ambar Singh v. Allahabad Bank Ltd. [1962] 2. S.C.R.
441, followed.
(2) Under s. 6(a) of the Abolition Act and s. 3(6) of the ti.Pc
Tenancy Act, 1939, the right title and interest of intermediaries in trees
anu grove·land, but not in trees constituting a grove, cease, an<l vest
in the State.
Since the trees constituting a grove have not vested in the
State and could not have formed the subject of creation of bhumiJhc;ri
rights they are the debtor's property and, are Hable to be proceeded against
in execution under s. 24 of the Encumbered Estates Act.
Even if the
appellants got bhumidhari rights over the trees constituting the
gi:ove·,
they could be proceeded against because, bhuntidhari rights could
be
proceeded against in execution. [580 B, C-E]
CIVIL APPELLATE JURISDICTION: Civil
Appeal No. 101&
of 1966.
Appeal by special leave from the order dated October 15, 1965'
of the Board of Revenue, U.P. in Revision No. 2-E of 1964·
Saharanpur.
J. P. Goyal and S. M. Hanif, for the appellants.
D
S. V. Gupte, G. D. Gupta and B. P. Maheshwari, for respon--
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dents Nos. 1 to 3.
The Judgment of the Court was delivered by
Vaidialingam, J.
The question that arises for consideration·.
in this appeal, by special leave, is a' to whether the bhumidhari
rights and trees belonging to the appellants can be proceeded against
and sold for realisation of the debts due to the respondents under
the U.P. Encumbered Estates Act,
1934 (Act XXV of 1934)
as amended (hereinafter referred to as the Ehcumbered Estates
Act).
The contention of the appellants is that they cannot be
sold, whereas, according to the respondents, they can be sold.
The predecessors-in-interest of the appellants were landlords
owning immovable properties, including agricultural land, trees,.
groves and well, situate in the various villages in the District of
Saharanpur. They w0re very heavily indebted, the debt3 being
both se:ured and unsecured, payable by them to the creditors.
The respondents were among the secured creditors to whom large
amounts were due.
On or about March 26, '1936 the appellant's
predecessors-in-interest filed an
application
under s. 4 of the
Encumbered Estates Act to the Collector for
determination of
their debts.
As required by s. 6 of the said Act, the Collector
forwarded this
application to the Special Judge,
Saharanpur.
appointed under s.3 of the said Act and the said application was
registered as Suit No.23 of 1936.
After complying with the other
fonnalities under the Encumbered Estates Act. the Special Judge,
on December 23, 1936 passed a decree under s.14(7) of the
Encumbered Estates Act.
The said decree was
amended on
. ;568
SUPREME COURT REPORTS
(1970] 2 S.C.R .
January 23, 1938.
The Special Judge granted a decree in favour
of respondents 1 to 3 for two sums of Rs. 36,000/-
and
.Rs. 25,000/- on loans secured over properties mentioned in
.Schedules A, B and C of the decree. They were also granted a
decree for Rs. 9,000/- which was the decree debt for the payment
of which the mother of the daughter had stood surnty. Over and
above these amounts, the respondents were given a decree . for
.Rs. 3,500/- for an unsecured debt.
The liquidation proceedings which were
started under the
Encumbered Estates Act and were pending before the Collector
were stayed till 1954 in view of the contemplated legislation for
abolition of zamindari, the Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950 (U.P. Act 1 of 1951) (hereinafter
referred to as the Abolition Act), and the appellant's estate vested
on July 1, 1952 in the State by virtue of the notification i;sued
.under s. 4 (1) of that Act. The liquidation proceedings pending
before the Collector under the
Encumbered Estates Act were
reopened in the year 1955.
On May 15, 1959 the respondents
made an application to the Assistant Collector of
Saharanpur
(to whom the powers of the Collector, for the purposes of s. 24
of the Encumbered Estates Act bad been delegated) io recove~
the amounts decreed to them by the Sp~cial Judge by piOc~eding
against the bhumidhari rights, and trees belonging to the appellants and to auction the same under s. 24 of the Encumbered
Estates Act.
The
appellants filed objections,
briefly, to the
fol!owing effect.
The decree holder is not entitled to proceed
against the
bhumidhari rights or the trees in their
possession.
The decree-holder's debts are secured debts -and they are entitled
only to three-fourths of the Zamindari Abolition and Rehabilitation Grants and that they are not entitled to get anything more
under the decree.
The list forwarded by the Special Judge does
not refer to any of their rights now sought to be attached nnd
therefore no executio,n can b.e
levied against such
properties.
Bhumidhari rights accrued only after the abolition of the zamindari and, as such, they cannot be proceeded against for realisation
of the decreed amounts. The Assistant Collector, by his order
dated February 21, 1961 upheld the objections of the appellantsdebtors and dismissed the application of the decree-holders-respondents for sale of bhumidhari and other rights in the propenies
mentioned by them.
The basis on which the Assistant Collector
declined to allow execution to proceed was that bhumidhari rights
-represent the proprietary rights which the zamindars, on the abDlition of the estate, were allowed to retain, by the Abolition Act.
In substance, those rights were the original proprietary rights,
though a new name of bhumidhari rights was given to them.
The respondents challenged this order of the Assistant Collector in appeal, under s. 45 (3) of the Encumbered Estates Act,
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JAMSHED BEGAM v. LAKHAN (Vaidialingam, J.)
569
A.
before the Commissioner, Meerut Division, who by his order dated
March 24, 1965 reversed the order of the Assistant
Collector
and held that the trees and bhumidhari rights of the appellants
could be sold in execution of the decree.
The view of the· Commissioner is that such rights are rights other than p:oprietary
rights. The prohibition contained in the Encumbered Estates
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(Act is only regarding the sale of proprietary rights and bhumidhari rights not .bein~ proprietary rights could be proceeded with
in execution.
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The appellants filed a revision, under s. 46 ( 2) of the Encumbered Estates Act,
before the Board of Revenue.
The two
contentions, that were raised by the appeliants, before the· Board
of Revenue were : ( i) bhumidhari rights are proprietary rights
:n land and as such, no execution can levy against such rights;
(ii) the bhumidhari rights sought to be proceeder! against have
not been mentioned in the list of properties sent by the Special
Judge to the Collector under s. 19 of the Encumbered Estates
Act and therefore they cannot be sold in liquidation proceedings
under Chapter V of the Encumbered Estates Act. Both these contentions were rejected by the Board of Revenue who, by their order
dated October 15, 1965 confirmed the order of the Commissioner
and dismissed the appellant's revision petition.
The Board of
Revenue has held that bhumidhari rights are not proprietary rights
and so bng as there is no prohibition under the Abolition Act to
proceed against them, the decree-holder was entitled to attach
and sell those rights. The Board further held that the properties
have been .mentioned in the list sent by the Special Judge and
ihe nature of the rights, viz., bhumidhari rights, could not have
been mentioned on the date when the list was &~nt because such
rights were obtained by the
appellants long thereafter. It is
against this order of the Board that the appellants have come up
to this Court in appeal.
Mr. Goyal, learned counsel for th~ appellants, urged
that
the decree obtained by the respondents under the
Encumbered
Estaies Act, as provided under s. 14 ( 8)
thereof, 'shall not be
executable within U .P. except under the provisions of this Act'.
Section 19 of the Encumbered Estates Act
provides
for
the
Special Judge informing the Collector of the nature and extent
of the property mentioned in the notice under s. 11, which he has
found to be liable for attachment and sale in satisfaction of the
debts of the applicant.
Section 24 provides for
the Collector
realising the value of such of the debtor's property other than the
proprietary rights in land as shall have been reported by
the
Special Judge under the provisions of sub-s. (2) of s. 19 to be
liable to aitachrnent or sale.
Having due regard to· these provisions, the counsel urged that the bhumidhari rights granted to the
570
SUPREME COURT REPORTS
[1970] 2 S.C.R.
appellants under the Abolition Act, having not been admittedly
reported by the Special Judge, cannot be proceeded against in
execution under the Encumbered Estates ,A ct.
The counsel fur·
ther urged that bhumidhari rights are special and new rights
given under the Abolition Act to the former proprietors of the
estate which vested in the State.
Those rights cannot be proceeded against for realisation of the debts due to the respondents.
Counsel referred us to the material provisions of the Encumbered
Estates Act and the Abolition Act in support of the above c::mtentions.
Mr. Goyal also urged that the rights of the respondents,
if any, are only to proceed against the
compensation awarded
under the Abolition Act. In support of his contention that the
.bhumidhari rights are new and special rights, Mr. Goyal referred
us to two decisions of this Court in Rana Shea Ambar Singh v.
Allahabad Bank Ltd., Allahabad(') and Krishna Prasad v. Guari
Kumari Devi(').
On the other hand, Mr. Gupte, learned counsel for the respondents, urged that the respondents are executing the decree
strictly in accordance with the provisions of the Encumbered
Estates Act. In this connection, counsel pointed out that whatever rights of. tt •• respondents, as mortgagees, originally might
have been, the decree passed under the Encumbered Estates Act,
under s. 14(7)(b)(i), in favour of the respondents is only a
simple money decree.
Therefore the provisions dealing with the
rights of a mortgagee in respect of an estate under the Zamindari
Abolition Act do not have any material bearing. He also referred to s. 18 of the Encumbered Estates Act to sho"v Lhat the
effect of a decree of a Special Judge under s. 14(7) is to extinguish the previously existing rights of mortgage or security. The
properties which are sought to be proceeded against are clearly
referred to by the Special Judge in th.~ decree sent to the Collector under s. 19 of the Encumbered Estates Act.
Under cl. (b)
of s. 19(2) it was only necessary to state the nature and extent
of the property and the Special Judge has informed the Collector
of those particulars.
Section 24 gives power to the Collector to
realise the value of such of the debtors' property as has been reported by the Special Judge under sub-s.
(2) of s. 19.
It is
against such property that the respondents are proceeding against
for realisation of their dues.
Mr. Gupte further urged that the
fact that at the time when execution is levied, the right of the
appellants is the bhumidhari rights in those identical properties
is not of any consequence.
The decisions relied on by Mr.
Goyal, the counsel points out, had no occasion to deal with the
rights of a creditor under the Encumbered Estates Act. He fur·
ther pointed out that there is no provision in the Abolition Act
barring attachment and sale of bhumidhari rights.
The couns~l
(1) [1962] 2 S.C.R. 441.
(2) [1962] Supp. 3 S.C.R. 564.
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JAMSHl!D BEGAM v. ~
(Vaiditzlingam, J.)
571
& . finally urged that the main purpose of the Encumbered Estates
Act was to help to preserve the proprietary rights of land-owners
in U.P. and at the same time to evolve a machinery to liquidate
their rights. It could not be the intention of the Legislature on
the one hand to preserve property rights in land even though it
is etcumbered with heavy debts and on the other to provide the
8
creditors no machinery for realisation of their dues.
c
It will be seen from the rival contentions set out above that
the main question that arises for consideration is as to whether
the bhurnidhari rights of· the appellants obtained by them under
the Abolition Act can be proceeded with for realisation of the
decree· obtained by the respondents under the provisions of the
Encumbered Estates Act.
This takes us to a consideration of
the material provisions of the Encumbered Estates Act and the
Abolition Act.
The object of the Encumbered Estat~s Act is to provide for
relief of encumbered estates in U.P. Section 2 defines among
other expressions, 'debt', 'land' and 'landlord'.
Section 3 deals
,9
with the api:)ointment of a Special Judge. Section 4 provides for
the. landlord · who is subject to or whose immovable property or
any part thereof is encumbered with private debts, for making
an application within the time mentioned therein to the concerned
CollectGr requesting that tbr. provisions of the Encumbered Es-
.tates Act be app)ied to him. The landlord has to state in. the
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application the amount of private debis as also bis public debts,
both decreed and undecreed.
Section 6 deals with the transmission to the Special Judg,e of the application received by the Collector under s. . 4.
The Collector has also m inform the Special
Judge of any public debts outstanding against the landlord.
Section 7 deals :with the consequence of acceptance of an appli-
'
cation by the Collector. In brief, all pe11ding proceedings .excepting proceedings by way of appeal or revision stand stayed
and all attachments .and other execution processes are declared
null and void.
No fresh suit or other , proceeding excepting an
apipeal or revi.sion against a decree or order can be instituted in
any civil or revenue C6urt. Section 8 deals with the Special
Judge who bas received an application under s. 6 caJlin;:; upon
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the applicant-landlord to s11bmit a written statement containing
full particulars regarding the public or private debts to which the
landlord is subject or his immovable pfPJll'rtY is encumber.ed, the
nature and extent of the landlord's proprietary rights in land, the
nature and extent of his property liable to attachment and sale
under s. 60, C.P .C., and the names and addresses of his creditOfS.
Under s. 9, the Special Judge has to publish in the Gazette
a notice calling upon all persons having claims in respect of private debts, both decreed and undecreed, against the landlord or
H
iliis prgpetty. Section 10 .provides that every claim made under
L3Sup.Cl/70-6
5.72
SUPREME COURT REPORTS
[1970] 2 s.c.R.
s. 9 should contain full particulars of the claim and also to the
extent possible the nature and extent of the landlord's proprietary rights in land as also the nature and extent of the landlord's
property other than proprietary rights.
Section 11 requires the
Special Judge to publish a notice specifying the property mentioned by the landlord under s. 8 and by a claimant under s. l 0.
It also provides for any person having any claim to the property
mentioned in such notice of making an application to the Special
Judge specifying his claim and for investigation by the Special
Judge whether the property specified in the claim or any part
thereof is liable-to attachment, sale or mortgage in satisfaction of
the applicant.
Section 14 empowers the Special Judge, after
giving the necessary notices in that behalf, to examine each claim
and determine the amount, if any, due from the landlord to the
claimant on the date of the application under s. 4. Section 14
(7 )(b) provides for the Special Judge, on finding that an amount
is due io the claimant, to pass a simple money decree. Sub-s.
(8) states that every decree passed under sub-s. (7) shall be
deemed to be a decree of a Court of competent jurisdiction but
shall not be executable within U.P. except under the provisions
of the Encumbered Estates Act. Section 18, dealing with the
effect of the finding of the Special Judge states that the existing
relationship between tue debt and t4e property which is charged
or mortgaged for that debt ar.~ extinguished· and the decree that
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is given by· the Special Judge is stated to substitute for the previous rig,'its a right to recover the amount of the decree in the
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manner and to the extent thereafter provided. It has already
been noted that under s. 14 it is only a simple money decree that
is passed by the Special Jud:;e.
Section 19 provides for the transmission of the decrees passed by the Special Judge to the Collector for execution in accordance with the provisions of Chapter V.
The Special Judge is also to inform the Collector of the nature and
extent of the property mentioned in the notice under s. 11 which
he has found to be liable to attachment or sale in execution of
the debts of the applicant. In the case before us there is no controversy that the
Special
Judge has complied with this- provision.
,
Chapter V deals with execution of decrees and liquidation of
debts and s. 24 provides for the Collector to whom the decree
has been transmitted by •he Sp,·ciaf Judge under s. 19 to proceed
to realise the value of such ot the debtor's property other than
proprietary rights in land as shall have been reported by the
Special Judge under the provisions of s. _19(2) to be liable to
attachment and sale.
In this connection, it may be staled that
the question that will arise for consideration is whether bhumidhari rights are 'the debtor's property other than proprietary
rights in land'. If they are not proprietary righN in land then
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J AMSHED BEGAM v. LAIHAN ( Vaidialingam, I.)
5 7 3
under this section they are liable to be sold under auciion because
the nature and extent of the property has been mentioned by the
Special Judge in his report under s. 19(2) to be liable to attachment and sale.
From the provisions referred to above, the Scheme of the Encumbered Estates Act appears to be . as follows.
Any landlord
who is encumbered with private debts can make an application
to the prescribed authority for applying tne provisions of that
Act. The Special Judge, after making the necessary publication,
calls for claimants against the landlord and also asc.,rtains
t!J.e
property of the debtor.
He then examines the claimants and
detennines the amounts of debt due and nasses a decree under
s. 7 of the Encumbered Estates Act if amounts are found to be
due; but even though the amount may have been charged on the
property, the Special Judge passes only a simple money decree.
Under s. 14 ( 8) the decree so passed is deemed to be a decree of
a Civil Court of competent jurisdiction and it shall not be executable except under the provisions of the Encumbered Estates
Act. Once the matter goes within the jurisdiction of the Special
Judge the existing relations between the debt and the property
which is charged or mongaged for that debt are extinguished and
the decree is only a simple money decree and not a mortgage
decree. The mode of execution is then described in s. 1 !' under
which ihe Special Judge transmits the decrees for execution to
the Collector infonning the latter among other matters of the
nature and extent of the property which he has found to be liable
to aitachment or sr.:e in satisfaction of the debts. The Collector,
Wider s. 24, has to realise the value of the debtor's property
other than proprietary rights in land. In the case before us we
have already referred to the various stages leading up to the respondents obtaining a decree and the decree being transmitted for
execution, as wel! as the final order of the Board of Revenue,
accepting the right of the respondents to levy execution against
the bhumidhari rights in the land.
Under the Aboliti.>n Aci, there is no controversy, that the
estate of the appellants vested in the State on July 1, 1952 by
virtue of the notification issued under s. 4.
Section 3 defines the
various expressions.
Seciion 4 deal~ with vesting of estates in
the State on the issue of a notification thereunder. Section 6 .
deals with the various consequences of the vesting of an estate in
the Staie. Clause (h) of s. 6 provides that no claim or liability
enforceable or incurred before the d•te of vesting by or against
such intennediary for any money, which is charged on or is
secured by a mortgage of such estate or part thereof shall rxcept as provide? in s. 7~ of the Transfer of Property', 1882, be
enforceable agamst the mterests of such third person.
Section
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SUPREME COURT REPORTS
[1970} 2 S.C.R.
18 deals with settlement of certain items with intermediaries or
cultivators as bhumidhars.
It is the claim of the appellants that
under this section they have been giv~r> rights of a bhumidhar in
respect of the properties which are now sought to be sold by the
respondents in execution. Section 199 provides that no bhumidhar shall be liable to ejectment.
We have not referred very elaborately to the provisions of the
Abolition Act or its scheme, because these have been considered
in the previous judgment of this Court in Rana Shea Ambar
Singh's Case('). It is enough to state that no provision in the
Abolition Act prohibiting the attachment and sale of the bhumidhari rights have been brought to our notice by Mr. Goyal.
In Rana Shea Ambar Singh's Case(') the facts were briefly
as follows.
The proprietor of an estate had executed a simple
mortgage of his proprietary interest in the estate consisting of 67
villages to the Allahabad Bank Ltd. The Bank obtained a
decree and while execution proceedings were pending, the zamindari Abolition Act was passed by virtue of which the estate vested
in the State and, consequently, the decree-holder Bank could no
longer sell the right~ of the proprietor in the 67 villages, mortgaged to it.
The Bank made an apolicatiori to the executing
Conrt to realise the amounts due to it by proceeding against the
rights of the judgment-debtor as remained in him after the coming into force of the Abolition Act.
One of the rights of the
judgment-debtor which were sought to be proceeded against was
the bhumidhari rights created under s. 18 of the Abolition Act.
The case of the Bank was that the judgment-debtor's proprietary
rights in grove land and sir and khudkast lands had been continued under s. 18 of the Abolition Act and that, in any ~vent,
they constiiuted substituted security in place of the original proprietary rights mortgaged. The judgment-debtor raised objections
to execution being taken against his Kmmidhari rights. The
High Court upheld the view of the executing Court that execution could proceed against the bhumidhari rights.
This Court
reversed the judgment of the High Court and held that the proprietary rights in sir, khudkast lands and groves vested in the State
on the issue of a notification under s. 4.
This conclusion was
reached after re.iecting the contention of the decree-holder that
the proprietary rights in sir, khudkast and grove lands did not
vest in the State and that those rights were continued in the landlord under s. 18. This Court further held that the Legislature
was creatinl! a n~w right under s. 18 and the old proprietary right
in sir, khudkast and intennediaries' grove land had already vested
·in the State under s. 6, and further observed, at p. 448 :
"We are of opinion that the proprietary rights in
sir and khudkast land and in grove land have vested
(!fl1962] 2 S.C.R. 441
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JAMSHED BEGAM V, LAKHAN (VaidiaJingam, J.)
575
in the State and what is conferred on the intermediary
by s.18 is a new right altogether which he never had
and which could not therefore have been mortgaged
in 1914."
'
In the later part of the judgment it was further held that the
bhumidhari rights created under s. 18 are not compensation and
that they are special rights conferred on the intermediary by
virtue of his cultivatory possession of lands comprised therein
and that the decree-holder cannot enforce his r:ghts under the
mortgage by sale of the bhumidhari rights created in favour of
the landlords under s. 18, so far as sir, grove land and khuJ.kast
lands are concerned and that he can only follow the compensation money under s. 6(h); The court finally rejected the contention that bhumidhari rights can be followed as substituted security.
It will be seen that in the decision cited above this Court was
considering the rights of a mortgagee as such to proceed against
the bhumidhari rights and it was in that connection, in view of the
specific provision under s. 6(h) of the Act and the nature of the
new rights created under s. 18, that this Court held that the mortgagee was not entitled to levy execution against the bhuruidhari
rights.
The said decision also lays down that the bhumidhari
rights granted under s.18 were new rights created by the legislature and the old proprietary right in the land had already vesterl
under s. 6 in the State. It is also clear from the said decision that
bhumidhari rights creaied under s.18 are not compensation and
that they are special rights conferred on the intermediary by
virtue of his cultivatory possession of the lands comprised therein
and bhumidhari rights cannot also be considered as substituted.
security. The point to be noted, and which 1'as been emphasised
in that decision, is that all proprietary rights in the land had
vested in the State and that no part of the proprietary rights remained in the landlord after the vesting of the estate in the State.
It is further to be' seen from that decision that the bhumidhari
rights are no part of proprietary rights which the landlord had,
prior to vesting.
In Krishna Prasad's Case(') the question
that arose for
consideration was whether under the Bihar Land Reforms Act,
1950 (hereinafter called the Bihar Act) it was open to a mortgagee-decree holder of an estate which had vested in the State to
levy execution personally against the mortgagor by attachment
and sale of other properties of the mortgagor. It was held by
this Court, after a review of the provisions of the Bihar Act
which were more or less su~tantia!ly the oame as those of the
Abolition Act, that the compensation payable on acquisition of
(I) [1962j Supp. 3 S.C.R. 562.
I
576
SUPREME COURT REPORTS
(1970] 2 S.C.R.
a mortgaged estate had been made a kind of substituted security
against which the mortgage claim could be enforced under the
Bihar Act.
It was further held that execution, by way of a personal decree, could only be done eventually if the realisation from
the compensation amount was found insufficient to satisfy the
decree.
We may also refer to the decision of this Court in Shivashankar Prasad Sah v. Baikunth Nath Singh('). That decision
had, again, to deal with the rights of a mortgagee-decree bolder
to proceed against the Bakasht land of the judgment debtors and
that right had to be decided under the Bihar Act.
Section 6 of
this Act, corresponds more or less to s. 18 of the Abolition Act.
In dealing with the scheme of the Bihar Act and in particular,
the effect of s. 6 this Court observed.:
"Reading ss. 3, 4 and 6 together, it follows that all
Estates notified under s.3 vest in the State free of all
encumbrances.
The quondum proprietors and tenureholders of those Estates lose all
interests
in those
Estates.
As proprietors they r.etain no interest in respect of them whatsoever.
But in respect of the lands
enumerated in s. 6 the State settled on them the rights of
raiyats.
Though in fact the vesting of the Estates and
the deemed settlement of raiyats in respect of certain
classes of lands included in the Estates took
place
simultaneously, in law the two must be treated as different
transactions; first there was a
vesting of the
Estates in the State absolutely, and free of all encumbranches.
Then followed the deemed
settlement by
the State of raiyat's rights on the quondum proprietors.
Therefore in law it would not oe correct to say that what.
vested in the State are only those interests not coming
within s. 6."
Finally this Court held that the mortgagee-decree holder's only
remedy was to establish their claim under the Bihar Act and get
compensation and that they cannot Levy execution against the
Bakasht land.
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In our opinion, none of the
decisions
referred to above,
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assists the appellants.
Those decisions were directly concerned
with the rights of the mortgagees as such to levy execution either
3ll against the bhumidhari rights or personally against the mortgagor or against his other properties. The right to levy execution was claimed by the decree-holders as mortgagees after the
e11tate mortgaged to them had vested in the State, under the releH
vant Acts.
Under those circumstances, this Court held that the
(I) Civil Aopeal No. 368 of 1966 decided on 7. 3. 1969,
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JAMSHED BEGAM V. LAKHAN (Vaidialingam, J.)
577
mortgagees' remedy was only to proceed against the compensation money as
provided under the material
provisions of the
statute governing the same.
None of those decisions had occasion to consider the question that now arises for consideration
before us, viz., the rights of a decree-bolder t1nder the Encumbered Esiates Act.
We have already referred to the nature of the decree that has
been obtained by the respondents.
Though at an earlier stage
they were mortgagees, it was a simple money decree that was
granted to them under s. 14 ( 7) of the Encumbered Estates Act and
their rights as against the mortgage securities had been extinguished nnder s.18 of the Encumbered Estates Act.
In this view,
o.6(h) of the Abolition Act, relied on by Mr. Goyal, does not
a&sist him.
It is no doubt tru.e that the decree obtained by the
respondents shall not be executable except under the provisions
of the Encumbered Estates Act.
The nature and the extent of
the property· liable to attachment and sale in satisfaction of the
debts due to the respondent, as required under s.19(2) (b) of the
Encumbered Estates Act have all been furnished in the decree
granted under s.14 ( 7) by the Special Judge and transmitted to
the Collector under s.19.
Therefore, when the respondents approached the
Assistant Collector on May 15,
1959 with an
application to recover their debts from the bhumidhari rights of
the app.~llants, they were only in the position of holders of simple
money dectees. If so, execution can be levied normally from
any property or rights which are liable to be attached or sold
unless there is any prohibition imposed by the statute.
Section
18, after extinguishing the rights in the property that may have
been held under a mortgage or security, specifically pr0 vides that
where any decree is given by the Special Judge they are in substitution of the original rights of a mortgagee or security holder and
the decree-holder has got the right to recover the amount of the
decree in the manner and to the extent prescribed.
Section 24
gives a right to the decree-holders to recover their dues from the
property of a debtor other than proprietary rights in land. Therefore the question is whether the bhumidhari rights conferred on
the appellants under s. 18 of the Abolition Act are property other
tLan proprietary rights in land. If they are rights other than proprietary rights, they can be proceeded against under s. 24 read
with s. 18 of the Encumbered Estates Act.
The decisions of this Court, referred to above, clearly lity
down that the proprietary rights of the landlord in the land vest
in the State on the passing of the relevant Abolition Acts.
It h!t~
also been emphasised in Rana Shea Am bar Sing h's Case(') and
as is also clear from s. 6 of the Abolition Act-that all
rights,
(J) [19621 2 S.C.R. 441.
578
SUPRliME COURT llllPOR.TS
' [1970] 2 S.C.R.
title and interest of all the intermediaries in every estate shall
cease and be vested in the State, on the issue of a notification
under s. 4 of the Abolition Act. If so, it follows that after the
estate vested in the State, the appellants had no proprietary rights
left in them; and th'.. bhwni\!hari rights, as held by this Court,
being new rights created for the first time in favour of the appellants under s. 18 of the Abolition Act and not proprietary rights,
the respondents are entitled to proceed against those rights under
s. 24 of the Encumbered Estates Act.
Mr. Goyal next urged that the bhumidhari rights have not
been mentioned in the decree granted under s. 14(7) nor have
they been reported by the Special Judge under s. 19 ( 2) as being
liable to attachment and sale as is necessary under s. 24.
True
it is that these rights, as such, have not been mentioned.
But a
persual of s. 19(2)(b) clearly shows that it was not necessary
that the interest or rights of the debtor should be mentioned in
the decree, because the requirement is only regarding the nature
and extent of the property and that has been mentioned in the
decree granted in favour of the respondents by th.e Special Judge
under s. 14(7), and it has been reported to the Collector under
s. 19(2). If. so, the requirements of ss. 19 and 24 have been
complied with.
Heuer. it follows that this
contention of Mr.
Goyal cannot be accepted.
There is also another reason for re·
jecting the said contention.
Bhumidhari rights have been created
in favour of the appellants only on July I, 1952, the date of vest-
. ing, on the issue of a notification under s. 4 of the Abolition Act,
whereas the amended decree in favour of the responcklnts has been
passed under s.14(7) as early as January 23, 1938. When the
Encumbered Estates Act permits the respondents to levy execu·
tion against the property of the debtor other than proprietary
rights in land and when there is no prohibition in the Abolition
Act against execution of decrees obtained under the Encumbered
Estates Act against such rights, it follows that the decree-holdersrespondents are entitled io proceed against the bhumidhari rights
and therefore the appellate order of the Additional Commissioner,
dated March 24, 1965 and the revisional order of. the Board of
Revenue, dated October 15, 1965 upholding the right of the respondents in this regard, are correct.
The further question that arises is whether the respondents are
entitled to levy execution against the trees in the possession of
the appellanis in execution of their decre.:.
No doubt, the general
objection that was taken by the appellants before the Assistant
Collector was that the groves formed part of the sir property and
therefore the question of their being auctioned does not arise and
that the groves do not form part of the list mentioned in the decree
passed by the Special Judge.
On the other hand, according to
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JAMSHl!D BBGAM v. LWIAN (Vaidialin.gam, /.)
579
the
r~ndents, the trees never vested in the State under the
Abolition Act and, as the appellants continued to be the owners
of th.e same, execution can be levied against the trees.
The con-
$ention of the appellants that the trees have not been mentioned
in the list need not detain us because the amended decree passed
by the Special Judge clearly refers to trees standing on the lands
described in the Schedu1eS.
Then the question is whether the
trees belong to the respondents.
Section 3(26) of the Abolition Act states that the words and
expressions, mentioned therein and which have not been defined
in the Act but used in the U.P. Tenancy Act, 1939 shall have the
meaning assigned to them in the latter Act.
Two, among the
various expressions reforrcd to ins. 3(26) are 'grove' and 'groveh()]der'.
Therefore we have to look into the U .P. Tenu:icy Act
to find out the meaning of the expression 'grove'.
Section 3 ( 6)
of the U.P. Tenancy Act, 1939 (U.P. Act XVII of 1939) defines
the expression 'grove-land' as follows :
"3 ( 6). 'grove-land' means any specific
piece
of
land in a mahal 'lr mahals having trees planted thereon
in such numbers that they preclude or when fμU grown
will
preclude, the land or any
considerable portion
thereof from being used primarily for any other purpose and the trees on such land constitute a grove."
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From the above, it will be seen that 'grove' is something different
from 'grove-land' because the
definition says that the trees on
such land, viz., 'grove-land', constitute a 'grove'.
Section 6 of
the Abolition Act, dealing with the consequences of the vesting
of a.L. estate in the State, among other things, states in cl.