2 S.C.R. RANA SHEO AMBAR SINGH v. ALLAHABAD BANK LTD., ALLAHABAD (P. B. GAJENDRAGADKAR, K. N. w ANCHOO, K. C. DAS GuPT4 and T. L. VENKATARAMA AIYAR, JJ.) Mortgage Decree-Proprietary rights in Zamindari-Exccu-
tion proceedings pending -Zamindari rights abolishcd-Bhumidari rights confirmed on intermediaries-·M ortgagor, if can sell Bhumi- dari rights in execution-Relief available-U. P. Zamindari
Abolition and Land Reforms Act, r950 (U.P. I of r95r), ss. 6(a)(i), 6(h), r8. The appellant's father, a Talukdar of the Estate of Khajur- gaon, executed a simple mortgage of his proprietary interest in the estate consisting of sixty-seven villages to the Allahabad Bank Ltd. While execution proceedings were pending, the
U. P. Zamindari Abolition and Land Reforms Act, i950, came into force from July 1952. As a result, the Zamindari rights of the appellant judgment-debtor were abolished and it was no longer possible to sell these rights in the 67 villages. The respondent Bank made an application before the executing
court that as the Zamindari rights could not be sold, only such rights of the judgment-debtor as remained in him after coming into force of the Act might be sold along with certain otl1er rights.
Objections were taken and finally the matter came up by appeal to the High Court and it, inter alia, upheld the view of the executing court that the execution could proceed against the Bhumidari rights created in favour of the appellant under s. 18 of the Act.
The question was whether the Bhumidari rights created under s. 18 of the Act could also be sold in execution of the decree in view of the fact that the proprietary rights had vest- ed in the State.
Held, that the intention of the U. P. Zamindari Abolition and Land Reforms Act was to vest the proprietary rights in the Sir and Khudkast land and grove land in the Estate by virtue of s. 6(a)(i) and resettle it on the intermediary not as compensa- tion but by virtue of his cu1tivatory possession of lands com- prised therein and on a new tenure and confer upon the inter- mediary a new and special right of Bhumidari, which he never had before, by s. 18 of the Act.
The proprietary rights in Sir, Khudkast land and grove iand which were mortgaged were extinguished, and the Bhumi- dari right which was altogether a new right could not be con- sidered to be included under the mortgage.
April 27. Rana Sheo Anibar Singh v. Allahabad Rani~ Ltd., Allahabad [1962] The mortgagee could only enforce his rights against the mortgagor in the manner as provided by s. 6(h) of the Act read withs. 73 of the Transfer of Property Act and follow the com- pensation money; and so far as the Sir, Khudkast land and
grove land were concerned, he could not enforce his rights under the mortgage by the sale of the Bhumidari rights created in favour of the mortgagor against them as a substituted secu- rity.
In the instant case the Bhumidari rights created in favour of the appellant could not be sold in execution of the decree held against him by the respondent under the mortgage of 1914. CIVIL APPELLATE
JURISDICTION: Civil Appeal No. 301 of 1960. Appeal from the judgment and decree dated Sep- tember 24, 1958, of the Allahabad High Court (Luck- now Bench) at Lucknow in First Execution of Decree
Appeal No. 8 of 1953. 0. B. Agarwala, Shankar Prasad and 0. P. Lal, for the appellant. Iqbal Ahmed, N. 0. Chatterjee, D. N. Mukherjee and B. N. Ghosh, for the respondent. 1961. April 27.
The Judgment of the Court was delivered by Wanchoo ]. WANCHOO, J.-This is an appeal on a certificate granted by the Allahabad High Court. The brief facts necessary for present purposes are these. The
appellant's father Rana Umanath Bakshsingh was the Talukdar of Khajurgaon. On July 13, 1914, Rana Umanath Bakshsingh executed a simple mortgage in favour of the Allahabad Bank Limited (hereinafter
called the respondent). The mortgage was for a sum of Rs. 6,00,000 and the property mortgaged consist- ed of sixty.seven villages. In May 1924, the respon- dent filed a suit for the recovery of the balance of the
unpaid mortgage money by the sale of the mortgaged property. In January 1925 a preliminary decree for the recovery of rupees four lacs and odd was passed, which was made final in July 1926 and directed the
sale of the mortgaged property, namely, the proprie- tary rights of Rana Umanath Bakshsingh in the sixty- seven villages. Then followed execution applications with which we are not concerned. In 1934, the U. P.
Agriculturists' Relief Act was passed and thereupon an application was made by the judgment-debtor for the amendment of the decree under that Act. On October 19, 1936, the decree was amended under the
provisions of that Act and thereafter the pending execution proceedings were dropped as instalments had been fixed. Evenl.ually, the rnspondent applied for execution on May 25, 1940. Objection was taken
to this application on the ground that it was barred by time; but this matter was decided against the judgment-debtor and thereafter the execution has been proceeding uptil now on this application.
On July 1, 1952, the U. P. Zamindari Abolition and Land Reforms Act, 1950 (1of1951), hereinafter called the Act, came into force. As a consequence of this en.actment, the zamindari rights of the judgment-
debtor were abolished and it was no longer possible to sell these rights in the sixty-seven villages. Con- sequent!)', on September 29, 1952, the respondent made an application that as the zamindari rights could
not be sold, only such rights of the judgment debtor as remained in him after the coming into force of the Act might be sold, namely, the rights in trees and wells in abadi and buildings situate in various villages
under sale. It was also prayed that the judgment- debtor's proprietary rights in grove land and sir and khudkashat land had been continued under s. 18 of the Act and these constituted substituted security in place
of the proprietary rights mortgaged with the respon- dent and they should also be sold. Finally it was pray- ed that compensation money payable to the judg- ment-debtor on the acquisition of the proprietary
rights by the State might be treated as substituted security. The appellant objected to these applications on various grounds. The execution court held that the buildings, trees and wells situated in the abadi were
liable to be sold in execution of the decree. It further held that the respondent was entitled to compensa- tion amount granted by the State to the appellant in lieu of zamindari rights as substituted security. Fin-
ally, it held that the bhumidari rights acquired by the I961 Ran(I. Sheo An1bar Singh v. Allahabad Bank Ltd., Ailahabad Wanchoo .f. [1962] appellants under s. 18 of the Act could also be sold in
execution of the decree. Rana Sheo JI h Amba. Singh The appe ant t en took the matter in appeal lo the v. High Court, and the two points urged before the High Allahabad Bank Court were (i) that the bhumidari rights created by Ltd., Allahabad s. 18 (i) of the Act could not be sold in execution of the decree, and (ii) that the application dated Septem-
Wanchoo f. her 20, 1952, was a fresh application for execution and as it was filed over 12 years after the date of the amended decree it was barred by time. The High Court repelled both these contentions, and held that
execution could proceed against the bhumidari rights created in favour of the appellant under s. 18 of the Act and further that the application dated September 20, 1952, was within time as it was not a fresh appli-
cation and the decree holder was only seeking to execute the decree in respect of the property for the sale of which he had already applied within time allowed by law. The High Court therefore dismissed
the appeal. The appellant then obtained a certificate to appeal to this Court; and that is how the matter has come up before us. The main point urged on behalf of the appellant iM
that the decision of the High Court that bhumidari rights created under s. 18 of the Act can also be sold in execution of the decree, is not correct. Under the mortgage deed, the property mortgaged consisted of
the property forming part of the Talukdari of Kha- jurgaon detailed at the foot of the mortgage, namely, the sixty-seven villages. Thus the mortgage consisted of the proprietary interests only of the mortgagor in
the sixty-seven villages, and as it was a simple mort- gage, possession of no part of the property was given to the mortgagee. It is therefore contended by Mr. Aggarwala on behalf of the appellant that as the
proprietary right in the sixty-seven villages vested in the State under the Act, the respondent who was only entitled to get the proprietary rights sold under the mortgage can now fall back only on compensation
payable to the appellant under the Act, and reliance in particular is placed on s. 6 (h) of the Act in this connection. On the other hand, the contention on behalf of the respondent is that bhumidari rights
arising under s. 18 of the Act are liable to be sold as they represented the proprietary rights which were mortgaged and in any case they can be sold as sub. stituted security in place of the property mortgaged.
We have therefore to look into the scheme of the Act in order to decide between the rival contentions. It is not in dispute that the Taluka of Khajurgaon was an estate within the meaning of the Act. It may
be mentioned that the judgment-debtor had certain sir and khudkashat lands and zamindar's grove in the sixty-seven villages comprised within the Talukdari estate. Section 4 of the Act provides for vesting of
an estate in the State on the making of a notification thereunder and the Taluka of Khajurgaon has vested in the State by virtue of such a notification made under s. 4. Section 6 prescribes the consequences of
the vesting arising under s. 4 and we may refer to s. 6(a) (i) as that will show in what the interests of the judgment-debtor ceased and became vested in the State:- "(a)-all rights, title and interest of all the inter-
mediaries- (i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fishe-
ries, tanks, ponds, water-channels, ferries, pathways, abadi sites hats, bazars or melas (other than hats, bazars, melas held upon land to which clauses (a) to (c) of sub-section (1) of section 18 apply), and
shall cease and be vested in the State of Uttar Pra- desh free from all encumbrances." Clause (h) of s. 6 is also material and is in these terms:- "(h) no claim or liability enforceable or incurred
before the date of vesting by or against such inter- mediary for any money, which is charged on or is secured by a mortgage of such estate or pa.rt thereof shall, except as provided in section 73 of the Trans-
fer of Property Act, 1882, be enforceable against his interest in the estate." ~1 r96r Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad Wanchoo ]. [1962] x961 All lands therefore whether cultivable or barren
or grove lands vested in the State on the notification Rana Shea b d th under s. 4 having een ma e save as o erw1se pro- Ambar Singh v. vided in this Act. Therefore, proprietary rights in
Allahabad Bank sir and khudkashat land and grove land would vest in Ltd., Allahabad the State on the coming into force of the notification under s. 4 unless there was some provision otherwise
Wanchoo f, in the Act. The contention of the respondent there- fore that sir and khudkashat land and grove land con- tinued to be the property of the appellant and would therefore remain liable to be sold in execution pro-
ceedings would fail in view of the notification under s. 4, unless of course there is a provision otherwise in the Act. The only provisions otherwise on which the respondent relies are ss. 9 and 18 of the Act.
So far as s. 9 is concerned, it is certainly a provision other· wise and it provides as follows:- " All wells or trees in abadi, and all buildings situate within the limits of an estate, belonging to
or held by an intermediary or tenant or other per- son, whether residing in the village or not, shall continue to belong to or be held by such intermedi- ary, tenant or person, as the case may be, and the
site of the wells or the buildings with the area ap· purtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed."
This provision clearly creates an exception to the property which vests in the State on the making of a notification under s. 4. The exception is in favour of all wells and trees in abadi and all buildings and it is
significant to note that these things will continue to belong to the intermediary, though the further provi- sion shows that the site of the wells, and buildings with the area appurtenant thereto would vest in the
Government and would be deemed to be settled with the intermediary on such conditions and terms as may be prescribed. The effect therefore of s. 9 is that wells, trees in abadi and buildings apart from the land
under them continue to belong to the intermediary (and the appellant is undoubtedly an intermediary within the meaning of the Act); but even here the land on which the buildings and the wells stand vest
r96r in the State and it is deemed settled with the inter- Rana Shea mediary on terms and conditions to be prescribed. So Ambar Singh far therefore as wells and trees in abadi and all build-
v. ings are concerned, these continue to belong to the Allahabad Bank appellant and if they are covered by the mortgage Ltd., Allahabad they would be liable to sale. As we have already
Wanchoo ]. pointed out, there was no dispute be1ore the igh Court with respect to wells, and trees in abadi and buildings and it was conceded there that these were liable to be sold, the only dispute being with respect
to bhumidari rights created under s. 18. Let us now turn to s. 18 and see whether it is also a provision otherwise like s. 9. The relevant part of s. 18 for our purposes is in these terms:-
"{!) Subject to the provisions of sections 10, 15, 16 and 17, all lands- (a) in possession of or held or deemed to be held by an intermediary as sir, khudkashat or an inter- mediary's grove,
on the date immediately preceding the date of vest- ing shall be deemed to be settled by the State Government with such intermediary, lessee, or tenant, grantee or grove-holder, as the case may be,
who shall subject to the provisions of this Act be entitled to take or retain possession as a bhumidar thereof." It is well to contrast the language of this section with the language of s. 9. Section 9 lays down that trees and
wells in abadi and buildings shall continue to belong to the intermediary and that shows that it was a pro- vision otherwise excepting these three items from vesting in the State by virtue of the notification under
s. 4 and its consequence under s. 6; but there is no provision ins. 18 of the Act to the effect that sir and khudkashat land and intermediary's grove shall con- tinue to belong to .the intermediary. Therefore, sir
and khudkashat land and grove land would vest in the State by virtue of s. 6 (a) (i) for there is no pro- vision otherwise in s. 18 in that behalf. In this con- nection we may refer for comparison to s. 23 of the
l':Jvl Rana Shea Ambar Singh v, Allahabad Bank Ltd., A ltahabad Wanchoo J. [1962] Rajasthan Land Reforms and Resumption of Jagirs Act, No. VI of 1952 (hereinafter called the Rajas than
Act) which provides that "notwithstanding anything contained in the la.st preceding section (i.e. s. 22, which refers to consequences of resumption), all khudkashat lands of a Jagirdar etc. shall continue to
belong to or be held by such jagirdar or other per- son". If the intention of the Act was not to vest sir and khudkashat land and grove land in the State we would have found an exception similar to that found
in the Rajasthan Act. Section 9 itself shows in what manner the legislature was making an exception when it did not intend that a particular property should vest in the State. If the intention were that sir and
khudkashat land and grove land should not vest in the State, s. 18 would have been worded in the same way as s. 9. Further the way in which s. 18 is worded, (namely that khudkashat and sir lnnd and an
intermediary's grove shall be deemed to be settled with the intermediary and he would have bhumidari rights therein) shows that these three kinds of pro- perty vested in the State under s. 6(a)(l) and were
then re-settled with the intermediary on a new tenure and not in the same right, which he had in them before the vesting. '.l'he legislature was therefore creating a new right under s. 18 and the old pro-
prietary right in sir and khudkashat land and any intermediary's grove land had already vested under s. 6 in the State, Therefore, it cannot be said that s. 18 is an exception to the consequenct's provided in
s. 6 and therefore sir and khudkashat land and grove land continue to be the property of the judgment- debtor in this case in the same manner as they were his property at the time of the mortgage and would
therefore be available in execution of the decree as the proprietary rights mortgaged. We are of opinion that the proprietary rights in sir and khudkashat land and in grove land have vested 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. Our attention in this connection was drawn to the
compensation sections in the Act, and it was urged that what was given to the intermediary under s. 18 was really his old right because no compensation was to be paid to him with respect to what was left to him
under s. 18. The first section to be considered in this connection is s. 39 which deals with gross assets of a mahal. In these gross assets the amount computed at the rates applicable to the ex-proprietary tenants of
similar land for land in the personal cultivation of or held as intermediary's grove, Khudkashat or sir by all the intermediaries in the estate was to be included subject to certain exceptions which are immaterial for
our purposes. The very fact that in the gross assets the rents of these lands in which the bhumidari rights were created under s. 18 were taken into considera- tion shows that these lands also vested in the State;
if that were not so there was no necessity for includ- ing these assets in the gross assets for the purposes of compensation. Here again we may refer to a similar provision in the Rajasthan Act for purposes of com-
parison. The second Schedule to that Act provides how gross income is to be calculated and in calculat- ing the gross income the income from khudkashat land has not been taken into account because it was
excepted from the consequence of resumption under s. 23 of that Act. It is true that under s. 44 of the Act when calculating net assets, the income from sir and khudkashat land and grove land has been excluded
on the ground that bhumidari rights have been con- ferred therein under s. 18 of the Act. That is however for the purposes of calculating what should be paid to the intermediary as compensation and in that con-
nection it was necessary to take into account the fact that the legislature was creating a new right in the intermediary with respect to certain lands and there- fore it was not necessary to give.money as compensa-
tion. That would not however make any difference in our view as to the legal effect of the notification under s. 4 and under the notification sir and khudka- shat land and grove land would vest in the State and
would not be an exception to the consequences of vest- ing in s. 6 and therefore the proprietary right in sir r96r Rana Sheo Ainbar Singh v. Allahabad Bank Ltd., Allahabad Wanchoo j,
Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad Wanchoo ]. [1962] and khudkashat land and grove land which were mortgaged would be extinguished and the bhumidari right which is created by s. 18 would be a new right
altogether and would not therefore be considered to be included under the mortgage in this case. This brings us to a consideration of s. B(h) of the Act. That lays down that "no claim or liability en-
forceable or incurred before the date of vesting by or against such intermediary for any money, which is charged on or is secured by a mortgage of such estate or part thereof shall, except as provided in s. 73 of the
Transfer of Property Act, 1882, be enforceable against his interest in the estate". This provision has in our opinion a two-fold effect. In the first place, it makes it impossible for the mortgagee to follow the proprie-
tary right after it vests in the State. Secondly, it provides that the only way in which the mortgagee can recover his money advanced on the security of the property which vested in the State by virtue of the
notification under s. 4 and the consequences thereof under s. 6 is to follow the procedure under s. 73 of the Transfer of Property Act. Section 73(2) provides that "where the mortgaged property or any part thereof or
any interest therein is acquired under the Land Acqui- sition Act, 1894 (1 of 1894), or any other enactment for the time being in force providing for the compul- sory acquisition of immovable property, the mortgagee
shall be entitled to claim payment of the mortgage money, in whole or in part, out of the amount due to t.he morLgagor as compensation". There is no doubt that the property mortgaged has been compulsorily
acquired in this case by the State under the Act. Therefore, s. 6 (h) read with s. 73 directs that the mortgagee shall proceed in the manner provided in s. 73, namely, follow the compensation money, and
there is no other way possible for him in view of s. B(h) with respect to the property which has been acquired under the Act. We have held that sir and khudka- shat land and grove land have been acquired under
the Act and have yested in the State; therefore the mortgagee is relegated to enforce his rights against the mortgagor in the manner provided in s. 73 of the Transfer of Property Act and in no other way. What
we say here does not affect that property which is not acquired by the State, for example, property ex- cepted under s. 9 of the Act; but where the property has vested in the State by virtue of a notification
under s. 4 and its consequences under s. 6, the only course open to the mortgagee is to follow the compen- sation money under s. 6(h). The bhumidari rights created under s. 18 are not compensation; they are
special rights conferred on the intermediary by virtue of his cultivatory possession of the lands comprised therein. The respondent therefore cannot enforce his rights under the mortgage by sale of the bhumidari
rights created in favour of the app,,.iant under s. 18 so far as his sir and khudkashat land and grove land are concerned; it can only follow the compensation money as provided in s. 6(h). The argument that bhumidari
rights 0an be followed as substituted security must therefore equally fail. Our attention in this connection was drawn to s. 8(2) of the U. P. Zamindars Debt Reduction Act, No. XV
of 1953. That Act provides for scaling down of debts of zamindars whose estates have been acquired under the Act. It also provides that the debts due shall be realisable frol)l the compensation and rehabilitation
grant, and in particular s. 8(2) provides that "notwith- standing anything in any law the reduced amount found in the case of a mortgagor or judgment-debtor as the case may be, under section 3 or 4 as respects
mortgaged estates shall not be legally recoverable otherwise than out of the compensation and rehabilita- tion grant payable to such mortgagor or judgment- debtor in respect of such estates".
We have not been able to understand how the provisions of the U. P. Zamindars Debt Reduction Act can affect the con- struction of s. 6(h) of the Act read with other provi- sions of the Act. It is not necessary for us therefore
to construe s. 8(2) of the U. P. Zamindars Debt Reduc- tion Act, for we are clear on the provisions of s. 6 (h) and the other provisions of the Act that bhumidari ,rights created in favour of the appellant cannot be
sold in execution of the decree held against him by the respondent under the mortgage of 1914. I96I Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad JVanchoo ] .. Rana Sheo
Ambar Singh v. Allahabad Bank Ltd,, Allahabad Wanchoo ]. z96I April 27. [1962) This brings us to the question of limitation. Mr. Aggarwala conceded that if the appellant succeeds on
the first' point it would not be necessary for us to con- sider the question of limitation. Therefore, as the appellant. succeeds on the first point we need not consider whether the application for execution by sale
of bhumidari rights created under s. 18 is barred by limitation. We therefore allow the appeal and direct that the execution of the decree by the respondent will not be levied against the bhumidari rights created in favour
of the appellant under s. 18 of the Act. The appellant will get his costs of this court and of the High Court. Costs of the execution court will be at the discretion of that Court.
Appeal allowed. TIRUMALACHETTI RAJARAM v. TIRUMALACHETTI RADHAKRISHNAYYA CH ETTY (P. B. GAJENDRAGADKAR, A. K. SARKAR, K. N. WANCHOO, K. C. DAS GUPTA and N. RAJAGOPALA AYYANGAR, JJ.)
Supreme Court, Appellate Jurisdiction of-Appeal from decree affirming the decision of the court below-Decree of aj/irmance, Meaning of-Test-Constitution of India, Art. 133(1). The appellant brought a suit for the recovery of his moiety share of the joint family properties against his father and alie- nees from the latter and his case was that the alienations made by the father were not binding on his share of the properties. The trial court dismissed the suit but the High Court on appeal reversed the decision of the trial court in respect of some of the properties, passed a preliminary decree for partition of those properties and confirmed the rest of the decree of the trial court. The appellant applied for a certificate under Art. 133(1) of the Constitution but the High Court rejected the same holding that the decree was one of affirmance and involved no substantial