Holding

The plaintiffs are entitled to possession of the khud‑kasht land under sub‑section 2 of section 4 of the Madhya Bharat Zamindari Abolition Act, 1951.

Summary

Meharban Singh and others had mortgaged their khud‑kasht land to Munshi Singh under a usufructuary mortgage. After the Madhya Bharat Zamindari Abolition Act, 1951 came into force, the proprietors' rights vested in the State, but section 4(2) allowed a proprietor to retain possession of land recorded as khud‑kasht before vesting. The trial court decreed redemption but denied mesne profits; the district court allowed mesne profits, while the High Court held the plaintiffs were not entitled to possession, only compensation. The Supreme Court, recalling its earlier decision, examined whether the land qualified as khud‑kasht and held that it did, thus the plaintiffs were entitled to possession under s. 4(2). Consequently, the appeal was allowed and the decree of the first appeal, granting possession, was restored.

Issues considered

Whether the plaintiffs are entitled to possession of the mortgaged land under sub‑section 2 of section 4 of the Madhya Bharat Zamindari Abolition Act, 1951.
Whether the land in question qualifies as khud‑kasht land recorded in the annual village papers before the date of vesting.
Whether any tenancy rights of the mortgagee or his tenants survive redemption of the mortgage.

Legislation cited

Madhya Bharat Zamindari Abolition Act, 1951s. 2(c), s. 3(1), s. 37(1), s. 41, s. 4(1)(a), s. 4(1)(f), s. 4(2)
Transfer of Property Acts. 76(a), s. 76(e)

Subjects

Zamindari abolitionkhud‑kasht landmortgage redemptionusufructuary mortgagepossessionmesne profitsland reform

Judgment

790

MEHARBANSINGH
v.
BHAGW ANTSINGH AND OTHERS
January 17, 1980

B [P. N. SHINGHAL AND E. S. VENKATARAMIAH, JJ.]

Madhya Bharat Zan1indari Abolition Act, 1951-S. 4(2)-Scope of.

By virtue of section 3 ( 1) of the Madhya Bharat Zan1indari Abolition Act,
1951, rights of proprietors in villages, Muhalas and Chaks or blocks settled
on the zamindari system vested in the State free from all encumbrances. In
1 \
c so far as the mortgages \Vere concerned a mortgage \vith possession \vhich
existed on the date immediately preceding the date of vesting of the property
was deemed to have been substituted by a simple mortgage. The mortgagee
who was in possession of lands under a deed of mortgage, for example a
usufrnctuary mortgage, lost possession of the lauds bi operation of la\v and
bis mortgage became e. simple mortgage from the date of vesting of the lands
in the State. On the other hand a mortgagor \vho was once the proprietor of
D the lands, though lost his proprietary right in the lands becau~e of their vesting

.
in the State, had to fulfil his obligation as a mortgagor to the extent of the
amount secured under the mortgage. To alleviate the lot of such proprietors
section 4(2) of the Act provided that notwithstanding anything contained in

E
sub-section ( 1) a proprietor shall continue to remain in possession of his
khud-kasht land so recorded in the annual village papers before the date of
vesting. The expression khud-kasht is defined to 111ean "land cultivated by
the Zamindar himself or through employees or hired labourers". If a person
.
I

was a zamindar and cultivated the land himself or through employees or hired
• labourers that would be his khud-kasht cu1ti\.·ation within the meaning of
section 2(c) of the Act, that is, in a given case if it v;as shown that a pro-
prietor had khud-kasht land \vhich was so recorded in the annual village
papers before the date of vesting of the lands in the State, he was entitled to
continue to remain in possession of those lands. Section 37(1) provides that
/
( -
'

F every proprietor who is divested of his proprietary rights shall be a pacoo.
tenant of the khud-kasht land in his possession and the land revenue payable
by him shall be determined at the rates fixed by the current settlement for
the same kind of land.

In the present case, the plaintiff's suit for redemption of the mortgage \Yhich •
was an usufructuary mortgage, was decreed by the trial court in respect of
G the relief of redemption but the claim in regard to the mesne profits \Yas
disallowed. Against that decree three appeals were filed- before the District '
Court, one of them being the appeal by the plaintiffs challenging the refusal
by the trial court to grant mesne profits. The plaintiff's appeal was partly
allowed granting mesne profits from the date of deposit of the mortgage money
in court. The other two appeals were dismissed. The matter v:as taken in
appeal to the High Court by the defendants in second appeal. The plaintiffs
ff also preferred a second appeal claiming full relief in so far as mesne profits
were concerned. The High Court partly allowed the defendants' appeal hold-
ing that the plaintiffs were entitled to redeem the mortgage by paying the
MEHARBAN SINGH V. BHAGWANT SINGH 791

mortgage money but were not entitled to get possession of the mortgaged ,.\
land, since according to the High Court, the proprietary rights including the
right to get possession bad become vested in the State -under the aforesaid
Act. It further held that the plaintiffs were only entitled to claim cornpensa·
tion from the Government in lieu of their proprietary rights after redeeming
the mortgage by making payment of the n1ortgege money. Against the decree
of the High Court, the plaintiffs filed an appeal before this Court in Meharban
Singh & Ors. v. Naresfz Singfz & Ors. [1970] 3 SCR 18. This Court set aside 8
the decree of the High Court and remitted the case back to the High Court for
a fresh decision on the question whether the lands in dispute were khud-kasht
larxls and to p.:1ss a decree for possession if they were found to be so in view
of sections 4(1)(f) and 4(2) of the Act. After the case went back to the
High Court, the State Government was impleaded as a party to the suit and
was·· permitted to file a written statement. Certain additional issues were
raised by the Higb. Court on the basis of the ne"v pleadings. The High Court C
sent the case to the trial court for recording its finding on the issue 'whether
the land in dispute was recorded as khud-ka.sht land immediately before the
date of vesting?' after giving the parties an opportunity to adduce further
evidence on the said additional issue and to resubmit the record to it. The
trial court held that the suit land was khud-kasht land in possession of the
plaintiffs before the date of vesting of the estate and submitted the said find·
ing to the High Court. The said finding was not in fact disputed before the D
High Court. Aii that the High Court was to decide was whether the
plaintiffs were entitled to the benefit of sub-section (2) of section 4 of the
Act but the High Court once again took the view that the plaintiffs were not
entitled to get possession of the suit lands although they were entitled to a
...' decree for redemption. It is against the judgment of the High Court, the
above appeal has been filed.
• Allowing the appeal and restoring the decree of the Court of first appeal, E
HELD : When the case went back to the High Court all that the High
Court was to decide was whether the appellant was entitled to the benefit of
section 4(2) of the Act in terms of the directions given by this Court. Since
the plaintiffs were the proprietors of the suit lands there can be no dispute
that till the time of mortgage the suit lands were in their possession. Secondly
since the ]ands were recorded as khud-kas/lt lands of the mortgagors in the F
annual vilJage papers before the date of vesting, they were clearly entitled
to a decree for possession in terms of section 4(2) and there was no occa-
sion for the High Court to examine the consequences of their losing the
' possession of the lands after the mortgage. When section 4(1) (f) read with
• s. 4(2) gave the mortgagor the benefit of the right to remain in possession of
his khud-kasht, which we.s in his possession upto the date of mortgage, there
•
could be no reason why it should bo denied to t:he plaintiffs. It was found •n G
evidence by the first court of appeal that the mortgagors were themselves
cultivating the lands and thereafter the mortgagee got them cultivated through
---- his relatives. Assuming that the mortgagee really inducted tenants in the
lands, during the period of mortgage their tenure was bound to end on the
redemption of the mortgage according to the ordinary- law of redemption
unless they could lay claim to protection under any other law. [797 E-H]
It is well settled that the normal law of mortgage would apply and tenants 8
inducted by the mortgagee would go out of the lands on redemption of the
13-91SCI/8~
SUPREME COURT REPORTS [1980] 2 SC.II.
•
792

A mortgage if in the n1eanwhile the law has not been shown to intervene for
their protection. In the instant case 1he law expressly gave the benefit 11!
section 4t2) to a proprietor like the plaintiffs. The tenants inducted by the
mortgagee would have no statutory right to possession .. 1800 A-B}

Mahabir Gopc and others v. Jlarbans l\7arain Singh and others [1952]'5.C.R.
775; Narihar Prasad Singh and Another v. Mst. of Munshi Nath Prasad and
B others [1956) SCR 1; Asa Ran1 and anotl1er v. Mst. Rani Klili 1111d £1no1/icr
[1958] SCR 986; Prabhu v. Ramdev and othm [1966] 3 S.C.R. 676. referred
to.
Section 41 which deals with protection of tenancy rights of the n1ortgagees
~annot be invoked by the mortgagees in the case of section 4(2). [800 B·C] J'\
c C'rv!L APPELLATE JURls.IJICTION: Civil Appeal No. 2113 of ...
1972.
Appeal by Special Leave from the Judgment and Order dated
10-2-1972 of the Madhya Pradesh High Court in Second Appeal No.
310 of 1960.
D Shiv Dayal and J. S. Sinha for the Appellant.
M. C. Bhandare, Mrs. Urmila Kapoor and Shobha Dixit for the
Respondent.
The Judgment of the Court was delivered by
SHINGHAL, J. This appeal of one of the plaintiffs, by special leave,
...
E is directed against the jndgment of the Madhya Pradesh High Court
dated February 10, 1972, by which the suit for possession of the lands,
which the plaintiffs had mortgaged, has been dismissed even though
the trial court's decree for redemption has been maintained. As the
matter has come up to this Court for the second time, at the instance
F of the plaintiffs it is not necessary to state all the facts for they have
been mentioned in this Court's earlier decision is Meharbansingh and
others v. Nareshsingh and others.(') It will be sufficient to refer to
those facts which bear on the present controversy. ;

The suit lands belonged to Samle Singh, father of appellant
Meharban Singh, and Jomdar Singh who executed a registered deed ,
G of mortgage in favour of Munshi Singh on May 20, 1939, for
Rs. 2242/14/-. It is not disputed before us that it was a usufructuary .._
mortgage of land within the area of the former Gwalior State. The
mortgagors gave a notice to the mortgagee on May 15, 1943, for redemp-
tion of the lands but he. refused to accept. The mortgagors filed the
suit for redemption on June 15, 1943. As some other persons were
B
alleged to be in possession of the suit lands, they were also impleaded
(!) [1970] 3 S.C.R. 18 •
MEHARBAN SINGH v. BHAGWANT SINGH (Shinghal, J.) 793

'l!s defendants. The Madhya Bharat Zamindari Abolition Act, 1951 A'
•(Samvat 2008), hereinafter referred to as the Act, came into force
on October 2, 1951, and leave was granted to the plaintiffs to amend
the -plaint suitably. The trial court decreed the suit on October 10,
1958, but disallowed the relief for the grant of mesne profits. Three
appeals were preferred against that judgment and decree of the trial
court. The appellate court dismissed the appeals of the defendants . B '
.It held that the suit lands were the khud-kasht lands of the, mortgagors,
~nd allowed the appeal of the plaintiffs for mesne profits from the
-date of the deposit of the mortgage-money. The defendants went in
second appeal to the High Court; and the plaintiffs also preferred an
appeal for refusal of mesne profits from the date of the cause of action.
The High Court partly allowed the defendants' appeal by its judgment
c
dated September 27, 1962. It relied on this Court's decision in Haji
Sk. Subhan v. Madhorao(') and held that the plaintiffs were not entitl-
ed to possession. It dismissed the appeal of plaintiff Meharbansingh.
He applied to this Court for special leave, and that led to this Court's
decision in Meherbansingh's case (Supra) mentioned above. This' D
·Court allowed the appeal and, after considering the relevant provisions
of the Act, remitted the case to the High Court for fresh decision after
notice to the state on the point whether the suit land were Khud-kasht
•..
1
of the plaintiffs and they were entitled to remain in possession under
1>ection 4 of the Act. The State was therefore allowed to be impleaded
as a party and to file a written statement. Certain additional issues E'
were framed by the High Court and the case was remitted to the trial
court for its findings. When it came to the High Court again, with
those findings it once again took the view that the plaintiffs were not
·- entitled to possession of the suit lands although they were entitled to
a decree for redemption. It is against that judgment of the High Court
dated February 10, 1973, that plaintiffs Meherbansingh has come up F
to this Court by way of the present appeal.
The facts of this case are thus quite simple, and its fate depends
, upon the answer to thz question whether the plaintiffs were entitled to
possession of the suit lands under sub-section (2) of section 4 of the

..
' Act.
The Act made provision for the abolition and acquisition of
G

the rights of proprietors in villages, "muhals", "chaks" or blocks
settled on the zamindari system. If therefore a person was a "proprie-
tor" within the meaning of clause (a) of section 2, all his proprietary
rights vested in the State free of all encumbrances by virtue of sub- n
section (l) of section 3 of the Act from the date specified for the
(I) {1962] Supp. I S.C.R. 123.
794 SUPREME COURT REPOR'l S [1980] 2 S.C.R.

A purpose in the notification issued by the State Government. It is not \
disputed that the sp2cified date for purposes of the present case was
October 2, 1951.
•
The consequences of the vesting of an estate under section 3
have been stated in section 4. We are not concerned with sub·
B section (3) of that section, and it will be sufficient to refer to clauses
(a) and (f) of sub-section (1) and sub-section (2) of Section 4. Clause
(a) of sub-section (1) of section 4 provides that save as otherwise pro-
vided in the Act, the following consequences shall ensue notwithstand-
ing anything contained in any contract, grant or document or in any
other law for the time being in force,-
c "(a) all rights, title and interest of the proprietor in such
area, including land (cultivable, barren or Bir), forest,
trees, fishe1ies, wells (other than private wells), tanks.
ponds, water channels, ferries, pathways, village-sites, hats,
and bazars and mela-grounds and in all sub-soil, including
D rights, if any, in mines and minerals, whether being worked
or not, shall cease a'nd be vested in the Stat>o free from all
encumbrances;"
This provision therefore had the effect of terminating the propriel'ary
rights of a proprietor in his estate and in vesting them in the State> .'
free from all encumbrances. The legislature has taken care to deal
E
with the fate of mortgages, in clause (f) of sub-section ( 1) of section
4, which reads as follows.-
"(f) every mortgage wit!h possession existing on the
property so vesting or part thereof on the date immediately
preceding the date of vesting shall, to the extent of the
F amount s•2cured on such property or part thereof be deemed
without prejudice to the rights of the State under ~ection 3,
to have been substituted by a simple mortgage."'
So a mortgage with possession, which ex.isled on th-: date immediate- '
ly preceding the date of vesting of the property, was deemed to have
G been substitued by a simple mqrtgage. That was to be so without
prejudice to the rights of the State under section 3. A mortgagee I
9"
who was i'n possession of lands under a deed of mortgage, e.g. a
usufructuary mortgagee, this lost possession of the lands by opera-
tion of the law, and his mortgage became nothing more than a simple
mortgage from the date of the vesting of the lands in the State. In
H other words, he lost possession of the lands which were once mort-
gaged with him with possession, and was left only with the normal
right of a simple mortgagee to realise the mortgage money.
' MEHARBAN SINGH v. BHAGWANT SINGH (Shinglzal, !.) 795

While that was the fate of the mortgagee under the Act, the fate A
-of the mortgagor, who was once the proprietor of the lands, was even
worse, for he lost his proprietary rights in the lands because of their
vesting in the State under section 3 as aforesaid and had, nonetheless,
to fulfil his obligation as a mortgagor to the extent of the amount
·secured under the mortgag~. It appears that the legislature there-
fore thought of alleviating the lot of those of such proprietors whose
B ,
·cases fell under sub·section (2) of section 4 of the Act. The sub-
:section reads as follows,-
·" (2) No:withstanding anything contained in sub-<>ection
•(I), the proprietor shall continue to remain in possession oI
his khud-kasht land, so recarded in the annual village
papers before the date of vesting."
c
"So only those proprietors were permitted to continue to remain in
·possession of their lands who had khud-kasht lands and the lands
were recorded as khud-kasht in the annual village papers before the
date of vesting. The expression khud-kasht bas been defined in
clause (c) of section 2 of the Act to mean, inter alia, land cultivated D
by the zamindar himself or through employees or hired labourers.
·Clause ( c) of section 2 of the Act states that words and expressions,
used in the Act, but not defined in it, shall have the same me.aning
as assigned to them in Qanoon Mal, Gwalior State, Samvat 1983.
The expression "zamindar" has been defined in clause ( 13) of
section 2 of the Qanoon Mal to mean a person who has the rights E
mentioned in it. It is not disputed before us that the plaintiffs were
zamindars under that definition, and were proprietors of their la'nds.
It is also not disputed before us that if a person was a zamindar and
<:ultivated the land himself or through employees or hired labourers,
that would be his khud-kasht cultivation within the meaning of clause
( c) of section 2 of the Act. It would follow that if, in a given case,
it was shown that a proprietor had khud-kasht land which was so
recorded i'n the annual village papers bdore the date of vesting of
the lands in the State, he was entitled to continue to remain in posses-
sion of those lands. This concession to the proprio>tor was by way
of a rider to the rigorous provisions of section 3 of the Act regarding G
the vesting of his estate in the State, and if a proprietor was able
to establish that ho was entitled to its benefit, there could be 'no
reason why it should not be .allowed to him. It may be that the
provision for the vesting of the estate in the State under section 3
and, in particular, that relating to the loss of possession of the mort-
:gagee under clause ( f) of section 4, operated harshly on a mortgagee DI
with possession, and he had to conte'nt himself with the other provi-
-sions in the Act for the satisfaction of the debt owed to him by the
796 SUPREME COURT REPORTS [1980] 2 S.C.R. ,

'A proprietor, but the law allowed him nothing more after the date of the
vesting of the estate in the State. The lot of the mortgagor-proprie-
tor was in fact far worse, for while the Act divested him of the
proprietary interest in the lands held by him and vested those right&
in the State, it held him liable as if his; mortgage was a simple mortgage
and left him only with the remedy of claiming compe'nsation, which.
B was itself overridden with his liability to his creditors. In the plight
in which he was placed by the land reforms legislation which was the.
subject-matter of the Act, it was quite reasonable for the legislature.
to allow him, notwithstandini anything contained in sub-section (l)
of section 4 which e'numerates consequences of the vesting of the
estate in the State, the benefit of what sub-sectiQn, (2) of that section;
c provided, and that also on his satisfying the rigorous conditions of
the sub-section mentioned above.
Reference in this connection may also be made to section 37 of
the Act, sub-sectio'n ( 1) of which provi<fos that every proprietor who•
is divested of his proprietary rights shall be "a pacca tenant of the
D khud-kasht land in his possession and the land revenue payable by
him shall be determin2d at the rates fixed by the current settlement
for the same kind of land." In fact, when this Court examined the
matter on the earlier occasion, it topk notice of the above provision&
of the Act and observed as follows,-

E "The proprietor however, notwithstanding other conse-
quences of the vesting in a State, is entitled to continue to
remain in possession of his khud-kasht land which is so
recorded in the annual village papers before the date of vest-·
ing. Now it was clearly open to the plaintiffs to show that /
/'
the land in question was khud-kasht and, therefore, in accord-
F ance with s. 4 they were entit:ed to remain in possession·
thereof."
In other \Vords, this Court took the view that while the mortgagor«
(appellants) fulfilled the other requirements of the law, their claim
to possession of the khud-kasht lands under sub-section (2) of sectiorr
4 of the Act had to be decided on the basis of the facts, and it was
G
open to them to show that the lands were khud-kasht and they were·
entitled to remain in possession in terms of sub-section (2) of section
4. That was the purpose why the case was remanded to the High
Court and an opportunity was give'n to the State to appear and con-
test the claim of the plaintiffs on that basis.
H As has been stated, the case went back to the High Court which,
in its turn, impleaded the State as a party to the suit, permitted it to
file a written statement, added certain issues and sent the case t<>
MEHARBAN SINGH v. BHAGWANT SINGH (Shinghal, /.) 797

the trial court for submitting its findings after giving the parties an A
opportunity to adduce further evidence. And wh>~n it went back to
the High Court with the findings of the trial court, the High Court
stated as follows in its judgment under appeal,-
"After imp!eading the State as a party, the following
issue, inter alia was remitted to the lower court for record-
ing a finding after giving both the parties an opportunity to R
adduce evidence :
'"Whether the land in suit was recorded as khud-kasht
immediately before the date of vesting."

- The parties fil·~d certain documents bnt did 'not adduce
any oral evidence on the point. The trial court has answer-
ed the issue in the affirmative. It was not disputed before
me that lhe land was recorded as Khud-kasht in the names
oE the plaintiffs at the time of vesting,. .... "
There can be no doubt, therefore, that the trial court recorded the
finding, on the basis of the '~vide'nce before it, that the suit lands were
recorded as the khud-kasht lands of the plaintiffs before the date of
the vesting of the "-state. That was in fact not disputed in the, High
Court.
All that the Hi;h Court had then to do was to decide whether
i
the appellant was entitled to the benefit of sub-section (2) of section
"' 4 of the Act, for that was the clear direction of this Conrt in the E
earlier judgment. It is not disputed before us that the plaintiffs were
the proprietors of the suit lands, and it cannot be disputed that as
they mortgaged them with possession with defendant Munshi Singh,
they were themselves in possession upto the date of the mortgage, and
as it has been found as a fact that the lands were recorded as khud-
kasht lands of the mortgagors in the annual village papers before the p
date of vesting, they were clearly entitled to a decree for possession
in terms of sub-section (2) of section 4 and there was no .occasion
for the High Court to examine the consequence of their losing the
• possession of the lands after the mortgage. It has to be appreciated
that possession is always lost by the mortgagor in the case of a
mortgage with possession. But when clause (f) of sub-section (1) G
of section 4 gave the mortgagor the benefit of sub-section (2) of
that section to claim the right to remain in possession of his khud-
kasht land which was in his possession upto the date of mortgage, if
the strict requirement of sub-s,~ction (2) was shown to exist, there
could be no reason why it should· be' denied to the plaintiffs.
ff
It may be mentioned In this connection that when the case came
up in first appeal before the Second Additional District Jndge of Bhind,
798 SUPREME COURT REPORTS [1980] 2 S.C.R. •

A he examined the statements of Himachal Singh DW 1, Ram Krishan
DW 2 and Hanumant Singh DW 3. Himachal Singh was a cousin of
mortgagee Munshi Singh, Ram Krishan DW 2 was a nephew of Munshi
Singh and Hanumant Singh DW 3 was himself a defendant. On a
consideration of their statemcn!s. the court of first appeal reached the
conclusion that the mortgagors were themselves cultivating the land
B
and thereafter the mortgagee got it cultivated through his relatives. But
eve'n if it were assumed that the mortgagee really inducted tenants in
the lands during the period of the mortgage, ~heir tenure was bound
to end on the redemption of the mortgage according to the ordinary
Jaw of pedemption unless, of course, they could Jay claim to protection \
c under any other Jaw. Reference in this connection may be made to
the decision of this Court in Mahabir Cope and others v. Harbans
Narain Singh and others(') where the Jaw has been laid down as
l
follows,-
"The general rule is that a person cannot by transfer or
otherwise confer a better title on another than he himself
D has. A mortgagee cannot, therefore, create an interest in
the mortgaged property which will enure beyond the termi-
nation of his interest as mortgagee. Further, the mortgagee,
who takes p05session of the mortgaged property. must
manage it as a persqn of ordinary prudence would manage
it if it were his own; and he must not commit any act which
F
is destructive or permanently injurious to the property; see
section 76, sub-clauses (a) & (e) of the Transfer of Pro- I
perty Act. It follows that he may grant leases not extend-
ing beyond the period of the mortgage; any leases granted
by him must come to an end at redemption."
F Care was taken to state further in that case that if during the per-
missible settlement by a mortgagee in possession with a tenant in the
course of prudent management, any right sprang up in the tenant by
conferral or creation by statute, that would be a "different matter
altogether", for that would then be an "exception to the general •
G rule."
The decision in Mahabir Gope's case (Supra) was applied or was
followed in Harihar Prasad Singh and another v. Mst. of Munshi Nath
Prasad and others(') where it was held as follows,-
"As the mortgagees are neither proprietors nor tenure-
holders as defined in the Act, the tenants holding under
n
(1) [1952] S.C.R.'775.
(2) [1956] S.C.R. I.
MEHARBAN SINGH v. BHAGWANT SINGH (Shinghal, !.) 799

them could not claim to be raiyats as defined in &Xtions A
5(2) and 5(3), and no occupancy rights could therefore be
acquired by them under section 21 of the Act."
That decision was again followed in Asa Ram and another v. Mst. Ram
Kpli ·and another(!) also, and was held as follows,-
"But where there is no such prohibition, the only conse- B
quence is that the parties will be thrown back on their rights
under the Transfer of Property Act, and the lessees must still
establish that the lease is blinding on the mortgagors under
s.76(a) of that Act."

Reference may also be made to Prabhu v. Ramdev and others(') C
where again reference was made to the decision in Mahabir Gope
(supra) and the legal position was reiterated as follows,-
"Having made these observations, however, this Court
bas taken th2 precaution to point out that even in regard to
tenants inducted into the land by a mortgagee cases may D
arise where the said tenahts may acquire. rights of special
character by virtue of statutory provisions which may, in the
meanwhile, come into operation. A permissible settlement
. i by a mortgagee in possession with a tenant in the course
of prudent management and the springing up of rights in
the tehant conferred or created by statute ba&od on the E
11ature of the land and possession for the requisite period, it
was observed, was a different matter altogether. Such a
case is clearly an exception to the general rule prescribed
by the Transfer of Property Act. It will thus be seen that
while dealing with the normal position under the Transfer of
F
Property Act, this Court specifically pointed out that the
rights of the tenants inducted by the mortgagee may cohceiv-
ably be improved by virtue of statutory provisions which
• may meanwhile come into operation. That is precisely what
has happened in the present case. During the continuance
of the mortgage s. 15 of the Act came into operation and
.
_
that made the respondents Khatadars who are entitled to
claim the benefit of s. 161 of the Act."
G

It is therefore well settled that the normal law of mortgage would
apply and tenants inducted by the mortgagee would go out of the
fonds on redemption of the mortgago, if, in the meanwhile, law has H
(ll [19ssrs.c.R. 986.
(2) [1966] 3 S.C.R. 676.
800 SUPREME COURT REPORTS [1980) 2 S.C.R.
'

A not been shown to intervene for their protection. As, i"n the instant
case, the law expressly gave the benefit of sub-section (2) of section
4 to a proprietor like the appellant, the tenants Inducted by the mort-
gagee will have no statutory right of possession. A vain a'.tempt was
made to invoke section 41 of the Act for the protection of the tenancy
rights of the mortgagees, but their learned Counsel was unable to show
8 how they could claim th·~ benefit of that section iu face of the dear
provision of sub-section (2) of section 4 of the Act. In fact all that
Mr. Bhandare was able to contend on behalf of the respondents was
that their case was covered by this Court's decision in Haji Sk. Subhat!'J
case (supra). That decision formed the basis of the ear;ier decision
of the High Court dated September 27, 1962, but this Court clearly I
c pointed out in its earlier decision that the High Court was· "in error
in allowing the appeal before it and in dismissing the plaintiff-appel-
lants' suit for possession on the authority of this Court's decision in
the case of Haji Sk. Subhan" (supra). It is therefore not necessary for
us to say, once again, why that decision cannot govern the present dis-
pute.
In the result, we, allow the appeal and restore the decree of the
court of first appeal with costs.

P.B.R. Appeal allow~d. • ...

•

y