Holding

A limited owner with the right to administer the estate may lawfully lease the land; the lessee is a lawful cultivator and therefore a deemed tenant under Section 4, becoming a deemed purchaser on the tillers' day, and the children’s contingent interest does not invoke Section 32F.

Summary

Rukhamanbai, a life‑tenant under a 1930 deed of settlement, leased agricultural land to five tenants. The tenants sought price determination from the Agricultural Lands Tribunal under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948, claiming they were "deemed tenants" under Section 4 and would become owners on the "tillers' day" of 1 April 1957. The Collector held that as a limited owner she could not lease the land, so the tenants were not deemed tenants; the Revenue Tribunal reversed, holding the lease was valid and the tenants were deemed tenants. The High Court remanded for price determination. The Supreme Court examined whether a limited owner may lawfully lease land, whether such lease creates a lawful cultivator who becomes a deemed tenant, and whether the children’s contingent interest postpones purchase under Section 32F. It held that the life‑tenant’s right to administer the estate includes leasing, the lessee is a lawful cultivator and thus a deemed tenant under Section 4, becoming a deemed purchaser on tillers' day, and the children’s interest is merely contingent, so Section 32F does not apply. Consequently, all the appeals were dismissed.

Issues considered

The scope of a limited owner's (life‑tenant's) right to lease agricultural land under a deed of settlement.
Whether a tenant inducted by a limited owner is a lawful cultivator and thus a deemed tenant under Section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948.
Whether such deemed tenants become deemed purchasers on the tillers' day.
Whether the contingent interest of the children of the limited owner postpones compulsory purchase under Section 32F.
The interpretation of "encumbrance" in relation to a lease.

Legislation cited

Bombay Tenancy and Agricultural Lands Act, 1948s. 2(17), s. 2(18), s. 31, s. 32, s. 32F, s. 32G, s. 32H, s. 4, s. 76
Transfer of Property Act, 1882s. 13, s. 76(a)

Subjects

limited ownerlife estateleasedeemed tenantBombay Tenancy Acttillers' dayagricultural landencumbranceSection 4Section 32FTransfer of Property Act

Judgment

607 A
SMT. RUKHAMANBAI
v.
SHIVRAM & ORS.
:.B
September 3, 1981

[D.A. DESAI, A.O. KosHAL AND R.R. MISRA, JJ.]

Bombay Tenancy and Agricultural Lands Act, 1948, sections 2 (18), 4, 32F
and G, scope of-WMther a limited owner of agricultural land governed by the
Tenancy Act during his/her l{fe time was entitled to lease the land, and if he or
c
she did lease the land whether the tenant inducted by the holder of life estate
could be said to be lawfully cultivating tM land so as to acquire the statuJ
of a dee1ned tenant under section 4 of the Act and as a corollary would become a
deemed purchaser on the tillers' day-Transfer of Property Act, section 13, section
76A and construction of the deed of settlement.

Under the deed of settlement (Ex. 2A) dated MaY 22, 1930, the appellaot-
landlady acquired a life-interest in certain agricultural lands under dispute and
the reversion remainder was in her children. During her lifetime she was entitled
to enjoy the income of the property but she could not dispose of the property
by will, gift or sale. She was also under a disability to encumber the estate
though she had the right of carrying on the "vahivat" (management).
E
By virtue of the provisions of section 32 of the Bombay Tenancy and Agri-
cultural Lands Act, 1948, providing that on April 1, 1957 styled as til1ers' day, a
tenant of Agricultural land covered by the said Act would be the owner of the
land held by him, if other conditions specified therein are fulfilled, the respon-
dents made five separate applications on August 27, 1962 against the appellant
before the Agricultural Lands Tribunal, Raver under section 320 for determining
the price of the land held by each of them as tenant. The appellant contested the F
right of the tenant to purchase the land, inter a/ia contending that under the deed
of settlement she acquired a right only to usufruct of land involved in the dispute
and she being a limited owner and the settlement imposing certain disability on
her precluding her from dealing with the property which would indicate that she
could not have leased out the land thereby creating an encumbrance which would
be impermissible under the deed of settlement and consequently the tenant of
each piece of land could not be said to be lawfully cultivating the land so as to G
become the deemed tenant under section 4 of the Tenancy Act. The respon-
dents not being tenants within the meaning of the Tenancy Act could not have
become the owner of the land on the tillers' day. Alternatively it was contended
that the minor children of the appellant, she being a limited owner had acquired
a vested right in the land and, therefore, as they were minors the date of compul-
sory purchase would be postponed under section 32F ousting the jurisdiction of H
the Tribunal to determine the price under section 32G. The Tribunal allowed
608 SUPREM~ COURT REPORTS (1982] I S,C.R,

the applications and negatived the appellant's contentions. All the five appeals
preferred by the appellant were allowed by the Co1lector of Jalgaon. The revi-
sion petitions filed by the tenants under section 76 of the Tenancy Act before the
Maharashtra Revenue Tribunal were allowed holding that even though the land-
lady in these cases was a limited owner the instrument settling the property on the
landlady did not preclude her from leasing the land and the lease was accordingly
valid under section A, the tenant would be a deemed tenant within the meaning of
B the Tenancy Act and such deemed tenant would become the owner of the land
held by him on the tillers' day. The appellant approached the High Court under
Article 227 of the Constitution. While rejecting the special civil applications the
High Court remanded the case to the Collector to give an opportunity to the
appellant to agitate the contention about the quantum of price as it was not
dealt with by the Collector on merits. The appellant having obtained a certifi·
cate under Article 133(1) (a) and (b) of the Constitution preferred these five
c appeals.

Dismissing the appeals, the Court,

HELD : 1. On a plain reading of the deed and the admitted position that
the appellant had leased the land to each of the respondents and in view of the
requirements of section 4 of the Tenancy Act, 1948, it is clear that the respondents
D would be deemed tenants under that section. (616 E-F]

1 : 1. Section 4 comprehends within its sweep any person lawfully cultivat-
ing any land belonging to another person. If land belongs to one person and
another is lawfully cultivating it, unless such person falls under any of the ex-
cepted categories; he would acquire the status of a deemed tenant. The excepted
categories are: (a) a member of the owner's family, or (b) a servant on wages
E payable in cash or kind but not in crop share or a hired labourer cultivating the
land under the personal supervision of the owner or any member of the owner's
family, or (c) a mortgagee in possession. It would thus appear that if the land
belonging to one person is being lawfully cultivated by" another person and 1hat
such other Person is not a member of the owner's family or a servant on wage·s
payable in cash or kind but not. in crop share or a hired labourer or a mortgagee
in possession then such cultivator lawfully cultivating the land would be dee1ned
F to be a tenant. The legal fiction of clothing a lawful cultivator of land belonging
to other person has widened the traditional concept of expression "tenant" which
would normally imply contractual relationship. [615 E·H, 616A]

l : 2. Under the deed of settlement appella.nt was given a life.estate. She
was the owner of the land during her life time with a limitation that she coul~
not will, gift or sell the property or encumber the same. In view of these four
G limitations she is undoubtedly a limited owner. But this limited owner holding
the life-estate has been given the right to ad1ninister the estate after she attained
majority. Administration of the estate would norrnaUy include leasing of the
property except where a specific condition is prescribed precluding the adminis·
trator from leasing the property. There is no such limiting or restrictive condition
prohibiting the appellant in the course of her management from leasing the Jand.
H The appellant beneficiary being a woman, the settlors must have thought that
she may not be able to personally carry on agricultural operations and therefore
when the settlers authorised her, on attaining majority, to administer the estate
RUKHAMANBAI V. SHIVRAM 609

it would per se in the absence of a limiting or restricting condition to the coun- A
trary enable her to lease the land. Thus, if the appellant as benefi.ciary after
attaining majority took over the administration and as part of the administra-
tion leased the land, the person so inducted by her on the land would be law-
fully cultivating the land belonging to the appellant and being not in any of the
excepted categories would be deemed to be a tenant. (616 B-E]

Dahya/a/ and Ors. v. Ra.rul Mohammed Abdul Rahim, (1963] 3 SCR I, B
followed.

2. Upon a pure literal construction of deed coupled with intendment of the
settlement, the appellants' interest in the property was a vested interest during the
life time with a right to take over management on attaining majority and to deal
with the property in her own way, and the children had only contingent interest
during the period. The property would devolve on the heirs named in the deed
and the devolution would take place on her death. Section 13 of the Transfer
c
of Property Act makes this position clear since none of her children to whom the
remainder was given was in existence at the time of transfer. Even if transfer
is in favour of unborn person, at the date of transfer to be valid there has to be
a prior interest created by the very transfer. This prior interest though limited
would not be contingent but vested interest. In fact the interest of future born
children would be contingent till the death of the appellant. The deed of settle- D
ment cannot be construed as a transfer in favour of unborn person, yet it settles
property on trust and the unborn children, under trust, may be beneficiaries but
they can claim interest only after the death of the appellant and no interest in
her life time. Under the deed of settlement an interest is created in favour of
the children of the appellant and the interest would take effect on the happening
of specified uncertain event-uncertain 4J.S to time-namely, the death of the
• appellant the interest of the children would be contingent. It is nothing short of
spes successionis. [618 D-H, 619 A]
E

Rajes Kanta Roy v. Santi Debi, [1957] SCR 77, discu1Jsed and distinguished.

3. The right to administer the property conferred on the appellant on her
attaining majority inheres the right to lease the property. If it be so, it is futile
to contend that restraint on the right to encumber would preclude her from
leasing the land. The right to manage or administer an immovable property F
such as agricultural land as a prudent man, comprehends the right to lease, save
where the contrary intention is indicated. It is equally well-recognised that a
limited owner or a life-estate holder in agricultural land, unless a clear intention
to the contrary is expressed, would be entitled to lease the land during his or her
life time. Reading the deed of settlement as a whole no such contrary intention
could be found. (620 B-D]
G
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 285-89
of 1969.

(From the judgment and order dated 7th December, 1966 of the
Bombay High Court in Special Civil Appeal Nos. 4 to 8 of 1965) H
610 SUPREME COURT REPORTS [1982] 1 s.c.R.

A G.L. Sanghi and A.G. Ratnaparkhi for the Appellant.

M.C. Bhandare, Mrs. Sunanda Bhandare, T. Sridharan and
Miss C.K. Sucharita, for the Rt spondents.

The Judgment of the Court was delivered by
B
DESAI, J. In the wake of agrarian reforms initiated by the
Bombay Tenancy and Agricultural Lands Act, 1948 ('Tenancy Act'
for short) an amendment of far reaching and revolutionary character
was introduced in 1956 so as to eliminate every intermediary
between the tiller of the soil and the state. The title of the landlord
c to the land passes immediately to the tenant on the titllers' day
and there is a completed purchase or sale thereof as between the
landlord and the tenant. The title of the land which was vested
originally in the landlord passes to the tenant on the tillers' day or
the alternative period prescribed in that behalf. This title is defea-
D sible only in the event of the tenant failing to appear or making a
statement that he is not willing to purchase the land or committing
default in payment of the price thereof as determined by the Agricul-
tural Lands Tribunal (See Sri Ram Ram Narain Medhi v. The State of
Bombay(')

E Section 32 provided that on April 1, 1957 styled the tillers'
day, a tenant of agricultural land covered by the Tenancy Act would
become the owner of the land held by him if other conditions
specified in the section were fulfilled. A forum styled Agricultural
Lands Tribunal was set-up and a procedure was prescribed in the
Act to determine the price payable by such tenant to the erstwhile
p landlord on becoming owner of the land held by him. Accordingly
five tenants of five different pieces of agricultural land made five
separate applications on August 27, 1962 against a common landlord,
the appellant herein before the Agricultural Lands Tribunal ('ALT'
for short), Raver, under section 32 G of the Tenancy Act for deter·
mining the price of land held by each of them as tenant. The land·
lord appeared in each proceeding and contested the right of the
G tenant to purchase the land, inter-alia, contending that under a
deed of settlement dated May 22, 1930, she acquired a right only to
usufruct of land involved in the dispute and thus she is a limited
owner and the settlement imposes certain disability on her precluding
her from dealing with the property which would indicate that she
H
(1) [1959] Supp. I. SCR 489 at 518.
RUKHAMANBAI v. SHIVRAM (Desai, J.j 611
I
could not have leased out the land thereby creating an encumbrance
" which would be impermissible under the deed of settlement and
consequently the tenant of each piece of land could not be said to
be lawfully cultivating the land so as to become the deemed tenant
under section 4 of the Tenancy Act. It was also contended that
the applicant (respondent herein) before ALT was not a tenant
within the meaning of the Tenancy Act and therefore he could not
have become the owner of the land on the tillers' day. Alter-'
natively, it was contended that the minor children of the lane\: ,
lord who being the limited owner, had acquired :a vested right
in the land involved in the dispute under the deed of settlement
and therefore as the landlords were minors the date of compulsory
purchase iu the case of such. minor-landlord would be postponed'
under section 32 F and therefore the ALT had no jurisdiction to
determine the price under section 32 G.

The ALT held that the appellant was the landlord and the tenant
in each case was a deemed tenant under section 4 of the Tenancy
Act and on !st April, 1957 by the operation of law he became the D
owner thereof. It was also held that the ALT was under a statutory
obligation to determine the price under section 32 G. The ALT
accordingly proceeded to determine the price in each case.

Five separate appeals were preferred by the appellant landlord
in each case to the Collector of Jalgaon. The Collector held that E
the present appellant landlord had a limited interest in the land and
thus as her interest fell short of ownership, she could not be
regarded as landlord within the meaning of the expression in the
Tenancy Act, Consequently, the Collector held that the tenant in
each case could not be deemed to be a tenant within the meaning of
the expression in the Tenancy Act. It was accordingly held that the
F
tenant in each case did not become the deemed purchaser under

- section 32 and therefore the ALT had no jurisdiction to determine
the price. The Collector allowed all the five appeals and dismissed
the five applications preferred by the tenant in each case.

The tenant in each case preferred a revision petition under
G
section 76 of the Tenancy Act before the Maharashtra Revenue
Tribunal. The Special Bench of the Maharash,ra Revenue Tribunal
by a common judgment allowed five revision petitions preferred by
the tenants and set aside the order of the Collector and restored
the order made by the ALT holding that even though the landlord in
H
these cases was a limited owner the instrument settling the property
612 SUPREME COURT REPORTS [1982] I S.C.R.

on the landlord did not prohibit the landlord from leasing the land
and lease was accordingly valid and therefore under section 4, the ""-
tenant would be a deemed tenant within the meaning of the Tenancy
Act and such deemed tenant would become the owner of the land
held by him on the tillers· day.

B The landlord approached the High Court under article 227 of
the Constitution. The Divisiun Bench of the Bombay High Court
by a common judgment disposed of the five special civil applications
filed by the landlord. The High Court relying on the decision . of
this Court in Dahyu Lal and Others v. Rasul Mohammed Abdul
Rahim(') held that the deed of settlement did not prohibit the landlord
8 from leasing the land and if the lease is created by such a limited
owner not precluded from leasing the land, it would c011fer on the
tenant of such landlord, the status of a deemed tenant under sec-
tion 4 and such a tenant woulu be deemed to have purchased the
land held by him on the tillers· day. The High Court negatived
the contention that the children of the landlord had a vested inte-
D rest in the land involved in the dispute during the life-time of the
landlord and the children being minors, the date of purchase would
be postponed under section 32 F. The High Court accordingly
rejected the special civil applicativns but remanded the case to the
Collector to give an opportunity to the landlord to agitate the con-
tention about the quantum of price which contention was not dealt
with by the Collector on merits.

The landlord by certificate under article 133 (I) (a' and (b) of
the Constitution preferred these five appeals

faJl.rernon 'Tenancy' has been defined in section 2 ( 17) of the
F Act to mean "relationship of landlord and tenant".

'Tenant" is defined in section 2 ( 18) as under:

'·Tenant" means a person who holds land on lease and
includes :
G
(a) a person who is deemed to be a tenant under sec-
tion 4;

(b) a person who is a protected tenant; and
[j
(IJ [t%3) 3 SCR I.
RUKHAMANBAI \', SHIVRAM (Desai, J.) 613

(c) a person who is a permanent tenant;" A
Section 4 which is material for the present appeal reads as
under:

"4. A person lawfully cultivating any land belonging
to another person shall be deemed to be a tenant if such B
land is not cultivated personally by the owner and if such
person is not :-

(a) a member of the owner's family, or

(b) ·a servant on wages payable in cash or kind but C
not in crop share or a hired labourer cultivating
the land under the personal supervision of the
owner or any member of the owner's family, or

(c) a mortgagee in possession."
D
There are two explanations appended to this section which
are not material for the present purpose. Section 32 (JJ which was
introduced in 1956 provided that on the !st day of April, 1957,
called the tillers, 'day, every tenant, subject to the provisions of the
next succeeding sections, be deeme,i to have purchased from his
landlord, free of all encumbrances subsisting thereon on the said day, E
the land held by him as tenant if he satisfied the conditions set out
in the section. Section 32G · provided that as soon as may be
after the tillers' day, the ALT shall publish or cause to be published
a public notice in the prescribed form irt each village within the
jurisdiction calling upon :-
F
(a) all tenants who u/s 32 are deemed .to have purchased
the lands:

(b) all landlords of such lands, and

(c) all other persons interested therein; to appear before
G
the ALT on the date specified in the notice. The ALT
shall then proceed to record statement of the tenant
whether he is or is not willing tn purchase the land
held by him as a tenant If the tenant is willing to pur·

- chase, the Tribunal shall after giving an opportunity
to the tenant and landlord and all the other persons
H
614 SUPREME COURT REPORTS [1982) l S.C.R,

A interested in such land to be heard and after holding
an enquiry determine the purchase price of such land
in accordance with the provisions of section 32 H
and sub-section 3 of section 63A. Section 32 F post-
pones the date of statutory purchase in the case where
a landlord is a minor or a widow or a person subject
8 to any mental or physical disability or a serving mem-
ber of the armed forces to a date one year from the
expiry of the period during which such landlord is enti-
tled to terminate the tenancy under section 31. ·

Having noticed the relevant provisions of the Act, it is necessary
c first to refer to the deed of settlement under which the landlord
acquired land involved in this appeal. By the deed of settlement
Exh. 2-A dated May 22, 1930 Devidas Devlal Seth father and
Sheo Parshad Devidas Seth, brother o( the appellant landlord
settled on trust the properties more particulary described in the
deed. At the time of settlement, appellant the beneficiary under
D the trust was a minor and the deed provided for the consequences
to ensue on her attaining majority. The relevant portion of the
deed of trust in this behalf reads as under :

"After the girl completes 21 years and while she is
physically and mentally in good condition, the right of
E carrying on the 'vahivat' (management) of the estate and
of spending the income thereof is with her alone, during
her life-time. However, she bas no right in any way either
to purchase the aforesaid estate or to create in any way
a charge (Translation is di&puted and is stated that
'encumbrance' is the appropriate rendering) thereon; •
F nor she has a right to dispose of the said estate under a
will.''

The deed provides for the disposal of the estate on the death
of beneficiary, the appellant giving 2/3rd of the estate to her male
issues and I/3rd to the female issues. In this behalf the recital in
G the deed is : that the children as many as will be alive at the time
of her death are to get the estate according to the terms mentioned
in the deed and if no child will be living the estate is to go to her
grand children according to the terms in the deed. The direction was
given that 2/ 3rd and I /3rd share shall be given to the children who
H will be living at the time of her death and in the event that there is
no child of a particular sex the whole estate was to go to the children
RUKHAMANBAI v. SHIVRAM (Desai, J.) 615

of the other sex. There is also a provision about disposal of the A
estate in the event the appellant has no child of her own.

The contention which Mr. G.L. Sanghi, the learned counsel
for the appellant put in the forefront was that the appellant being
a limited owner under the deed of settlement was not entitled to
lease the land and therefore respondents could not be said to be e
lawfully cultivating the land and therefore could not become deemed
tenants under section 4. Consequently, they could not have become
deemed purchasers on the tillers' day. As a corollary it was con-
tended that in any event as the children have a vested remainder in
the estate the date of purchase would be postponed as provided in
section 32 F of the Act, and therefore ALT could not entertain an c
application under section 32 G and proceed to determine the
price on the footing that the tenant has become a deemed- pur-
chaser.
Under the deed of settlement appellant acquired a life interest
and the reversion-remainder was in her children. Durir.g her life
[)
time she was entitled to enjoy the income of the property
but she could not dispose of the property by will, gift or
• sale. She was also under a disability to encumber the estate
and it was urged that lease is an encumbrance. The substantial
question is whether a limited owner of agricultural land governed
by the Tenancy Act during his/her life time was entitled to lease the
land and if he or she did lease the land whether the tenant inducted
by the holder of life estate could be said to be lawfully cultivating
the land so as to acquire the status of a deemed tenant under
section 4 and as a corollary would become a deemed purchaser on
the tillers' day. Section 4 has been extracted hereinbefore. It
comprehends within its sweep any person lawfully cultivating any
land belonging to another person. If land belongs to one person
F
and another is lawfully cultivating it, unless such person falls under
- any of the excepted categories; he would acquire the status of a
deemed tenant. The excepted categories are : (a) a member of the
•
owner's family, or (b) a servant on wages payable in cash or kind
but not in crop share of a hired labourer cultivating the land under
G
the personal supervision of the owner or any member of the owner's
family, or (c) a mortgagee in possession. It would thus appear
that if the land belonging to one person is being lawfully cultivated
by another person and that such other person is not a member of
the owner's family or a servant on wages payable in cash or kind H
but not in crop share or a hired labourer or a mortgagee in possession
then such cultivator lawfully cultivating the land would be deemed
616 SUPREME COUl\T REPORTS (I 982] 1 S.C.R.

A to be a tenant. The legal fiction of clothing a lawful cultivator of
land belonging to other person has widened the traditional cancept
of expression ·tenant" which would normally imply contractu?.l
relationship.

Under the deed of settlement appellant was given a life-estate.
B She was the owner of the land during her life time with a limitation
that she could not will, gift or sell the property or encumber the
same. In view of these four limitations she is undoubtedly a limited
owner. But this limited owner holding the life estate has been given
the right to administer the estate after she attained majority.
Administration of the estate would normally include leasing of
c the property except where a specific condition is prescribed preclud-
ing the administrator from leasing the property. There is no such
limiting or restrictive condition prohibiting the appellant in the
course of her management from leasing the land. The appellant
beneficiary being a woman, the settlors must have thought that she
may not be able to personally carry on agricultural operations and
D therefore when the settlors authorised her, on attaining majority,
to administer the estate it would per se in the absence of a limiting
or restricting condition to the contrary enable her to lease the land. •
Thus, if the appellant as beneficiary after attaining majority took
over the administration and as part of the administration leased the
land, the person so inducted by her on the land would be lawfully
E cultivating the land belonging to the appellant and being not in
any of the excepted categories would be deemed to be a tenant. On
a plailt reading of the deed and the admitted position that she had
leased the land to each of the respondents and keeping in view the
requirements of section 4, the conclusion that the respondents
would be deemed tenants under section 4 of the Act is inescapable.
F '·
The view which we are taking, is borne out bv the observations
• of this Court in Dahya/al and Ors. v. Rasul Mohammed Abdul Rahim
(supra). In that case the tenant was inducted on the land by a
mortgagee in possession and the contention was that as the mort-
-
gagee in possession would not be deemed to be a tenant because he
G
is in the excepted categories set out in section 4, the tenant inducted
by him would not acquire the status of a deemed tenant. After
analysing the provisions of the Tenancy Act, this Court held that all
persons other than those mentioned in clauses (a), (b) and (c) of
section 4 who lawfully cultivate land belonging to other persons
H
whether or not their authority is derived directly from the owner of
the land must be deemed tenants of the land. The execution of
RUKHAMANBAI v. SHIVRAM (De~ai, J.) 617

mortgagee in possession from the category of deemed tenant was A
explained on the ground of public policy in that to confer such
status upon mortgagee in possession would be to invest him with
rights inconsistent with his fiduciary character. However, the tenant
inducted by a mortgagee in possession in discharge of his liability of
prudent management cast by section 76(a) of the Transfer of Pro-
perty Act as also under the authority derived from the mortgagor B
would be lawfully cultivating the land. Accordingly the person
inducted would be a deemed tenant who would be entitled to the
protection of the Act even after the mortgage is redeemed. Once
such a tenant enjoys the status of a deemed tenant and bolds land
in that capacity, on the tillers' day he would become the deemed
purchaser. c
A contention was raised that this Court overlooked in
Dahya/a/'s case a vital point that a transferor cannot confer a better
title on another than he himself possesses and that therefore in
view of section 76(a) of the Transfer of Property Act a mortgagee
in possession cannot create an interest to endure beyond redemption D
• of mortgage to bind the mortgagor. It was urged that if a mort-
gagee in possession is specifically excluded from acquiring status of
a deemed tenant, ipso facto tenant inducted by him cannot acquire
that status. The court negatived the contention. It would be
advantageous in this context to refer to Prabhu v. Ramdeo and Ors.(1)
where this Court held that a tenant of a mortgagee in possession can E
invoke the benefit of subsequent tenancy legislation which provided
that such a tenant could not be evicted except in the circumstances
set out in that legislation. The mortgaged property in that case
was land used for agricultural purposes and the mortgage was
usufructory mortgage. After redemption the original mortgagor
sued for actual possession from tenant inducted by the erstwhile F
mortgagee alleging that on redemption of mortgage, the tenant bas
to surrender possession. In the meantime, Rajasthan Tenancy Act
of 1955 bad been introduced and the tenant claimed protection
against eviction under it. This Court after referring to Mahabir Gope
and Others v. Harbans Narain Singh and Others(') and Harihar Prasad
Singh and Another v. Must. of Manshi Nath Prasad and Others(')
G
held that rights of the tenants inducted by the mortgagee may

(I) [1966) 3 S.C.R. 676,
(2) [1952) SCR 775.
(3) [1956) SCR I. H
--- .---
618 SUPREME COURT REPORTS (1982] 1 S.C.R.

A conceivably be improved by virtue of statutory provisions which ,
may meanwhile come. into operation. Such a case would clearly
be an exception to the general rule prescribed by the Transfer of,
Property Act that mortgagee in course of management cannot create
an' ·interest which would endure beyond the redemption of
mortgage.
B
It was next .contended that in any event the appellant having
been given a life estate with the vested 'rell]ainder in her children,
she had n9 vested interest in th~ property during he~ Jifetime but
her interest would be contingent ,interest and therefore eyen during
her lifetime, the children would be, the owners and as they were
c minors the date of statutory purchase would be postponed under
section 32 F. Looking to the terms of the deed of settlement,
subject to the limitations therein prescribed the appellant had a
vested interest with a right to take over management on attaining
majority and to deal with the property in her own way. Assuming
without deciding that she had no right to will, gift, sell or encumber
D the property yet assuming she did deal with it in the manner
prohibited it would nonetheless be binding during her lifetime. The
property would devolve on the heirs named in the deed a 1 d the •
devolution would take place on her death. Therefore, upon a pure
literal construction of deed coupled with intendment of the settle-
ment it is difficult to accept Mr. Sanghi's submission that her
E interest in the property during her life time was contingent interest.
This will further be borne out by the provision contained in sec-
tion 13 of the Transfer of Property Act inasmuch as she was given
life or limited interest and the remainder to her children none of
whom was in existence at the time of transfer. Even if transfer is
in favour of unborn person, at the date of transfer to be valid
f there has to be a prior interest created by the very transfer. This
prior interest though limited would not be contingent but vested
interest. In fact the interest of future born children would be
contingent till the death of the appellant. The deed of settlement
cannot be construed as a transfer in favour of unborn person, yet it
settles property on trust and the unborn children, under trust, may
G be beneficiaries but they can claim interest only after the death of
the appellant and no interest in her life time. Under the deed of
settlement an interest is created in favour of the children of the
appellant and the interest would take effect on the happening
of specified uncertain event-uncertain as to time-namely, the
H death of the appellant, then till the death of the appellant the interest
of the children would be contingent. It is nothing short of spes
RUKHAMANBAI v. SH!VRAM (Desai, J.) 619

successionis. Mr. Sanghi, however, referred to Rajes Kania Roy v. A
Santi DebW) and urged that by a parity of reasoning we must hold
that the interest of the appellant was a contingent interest. In that
case one Ramani created an endowment in respect of some of his
properties in favour of his family deity and appointed his three sons
as shebaits. After the death of one of his sons, widow of the
deceased son instituted a suit against other members of the family B
for a declaration that she as an heir of her deceased husband, was
· entitled to function as shebait, in place of her husband. The suit
ended in a consent decree recognising the right of the widow as a
co-shebait. Subsequently the settler Ramani and his two other
sons filed a suit against widow of the pre-deceased son for a decla-
ration that the consent decree was null and void. During the c
pendency of the suit the settlor Ramani executed a registered trust
deed in respect of his entire property. The eldest son was appointed
trustee to hold property under trust subject to certain powers and
) obligations. The second suit which was pending at the death of
settlor Ramani ended in a consent decree. One of the terms of the
consent decree was that widow of the predeceased son gave up her D
rights under the earlier consent decree by which she obtained status
of co-shebait and she was paid Rs. 475/- per month as allowance.
Complaining of a default in the payment of allowance she filed an
application for execution to realise the arrears and she sought attach-
ment and sale of certain properties. The eldest son filed an objection
contending that under the settlement of trust his interest in the
property was contingent till the debts are paid and as the pre-
condition is not satisfied the contingent interest is not attachable.
Negativing this contention, it was held that the determination of
the question as to whether any interest created by trust deed is
vested or contingent has to be guided by the principles recognised
under sections 19 and 21 of the Transfer of Property Act and the
F

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Indian Succession Act. After referring to certain English authorities
and text-books by writers it was held that the question is really one
of intention to be gathered from a comprehensive view of all the
terms of a document. After examining all the terms of the deed of
trust, this Court held that even though the debts were not dis-
G
charged the appellants, namely, the sons acquired a vested interest
and not a contingent one.

Having examined the trust deed before us, we are satisfied
that the appellant had the vested interest in the property during
H
(1) [1957] S.C.R. 77.
620 SUPREME COURT REPORTS (1982] 1 S.C.R.

A her life time and the children had only contingent interest during
that period.

It was lastly contended that as the appellant was prohibited
from creating an encumbrance on the property, she had no right
to lease the property because in a certain way lease is also an encum-
B brance. Without going into the wider question whether the
expression 'encumbrance' in the context in which it is used would
comprehend lease within its fold we would dispose of the conten-
tion on the short ground that the right to administer the property
conferred on the appellant on her attaining majority inheres the
right to lease the property. If it be so, it is futile to contend that
c restraint on the right to encumber would preclude her from leasing
the land. The right to manage or administer an immovable pro-
perty such as agricultural land as a prudent man, comprehends the
right to lease, save where the contrary intention is indicated. It is
equally well-recognised that a limited owner or a life estate holder
in agricultural land, unless a clear intention to the contrary is
D expressed, would be entitled to lease the land during his or her life
time. Reading the deed of settlement as a whole, we do not find
any such contrary intention and, therefore, we must negative the
contention.

Having examined all the contentions of Mr. Sanghi, we find
E no merit in any of them and therefore all these appeals fail and are
dismissed with costs. Hearing fee in one set.

V.D.K. Appeals dismissed.

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