ASA RAM AND ANOTHER versus MST. RAM KALI AND ANOTHER

Citation: [1958] 1 S.C.R. 988 · Decided: 21-11-1957 · Supreme Court of India · Bench: T.L. VENKATARAMA AIYYAR · Disposal: Appeal(s) allowed
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Judgment (excerpt)

988 
SUPREME COURT REPORTS 
1951 
ASA RAM AND ANOTHER 
1\'ovember, 21 . 
V. 
MST. RAM KALI AND ANOTHER 
(VENKATARAMA AIYAR, S. K. DAs and 
GAJENDRAGADKAR, JJ.) 
(19581 
Tenancy-Hereditary right, when can come into exist-
ence-Lease by mortgagee-When binding on mortgagor-
Transfer of Property Act, 1882 (IV of 1882), s. 76(a)-U.P. 
Tenancy Act, 1939 (U.P. XVII of 1939), s. 29 (a). 
Section .29 (a) of the U.P. Tenancy Act, 1939, provides 
that every person who was at the commencement of the 
Act a tenant of land shall be entitled to all the rights of 
hereditary tenants under the Act. Some classes of 
tenants are expected from the operation of this provision, 
and one of them is tenants of Sir lands. 
The lands in question were originally held in Sir but in 
pursuance of a deed of usufructuary mortgage dated July 8, 
1930, they were entered as Khudkasht in the names of the 
mortgagees. Subsequently the respondents took possession 
of the lands from the mortgagees under a Kabuliat dated 
May 26, 1936. After redemption of the mortgage the 
appellants, the representatives of the mortgagors, filed a 
suit for possession under s. 180 of the U.P. Tenancy Act, 
1939, against the respondents on the footing that they were 
trespassers. The respondents contended, inter alia, that they 
were legally in possession of the lands because (1) the lease 
on the basis of which the Kabuliat of May 26, 1936, was 
executed, was binding on the appellants, and (2) in any 
case, as the respondents were in possession of the lands 
as tenants on the date of the commencement of the Act, 
they were entitled to all the rights of hereditary tenants 
under s. 29 (a) of the Act. It was found that the action of· 
the mortgagees in leasing the lands to the tenants on the 
terms set out in the Kabuliat was neither prudent nor 
bona fide: 
Held: (1) that under s. 76(a) of the Transfer of Pro-
perty Act, 1882, an agricultural lease created by a mort-
gagee would be binding on the mortgagor even though the 
mortgage has been redeemed, provided it is of such a cha-
racter that a prudent owner of property would enter into 
it in the usual course of management; 
(2) that a person who claims rights as a hereditary 
tenant under s. 29 (a) of the U.P. Tenancy Act, 1939, must 
show that on the date of the commencement of the Act 
he was lawfully a tenant. 
Accordingly, as the lease in question could not be up-
held under s. 76 (a) of the Transfer of Property Act, 1882, 
there was no admission of tenant by any person having 
S.C.R. 
SUPREME COURT REPORTS 
989 
authority to do so, and the transaction could not form the 
foundation on which any rights under s. 29 (a) of the U.P. 
Tenancy Act, 1939, could be based. 
Mahabir Gope and others v. Harbans Narain Singh and 
others, [1952] S.C.R. 775, referred to. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 56 
of 1956. 
Appeal by special leave from the judgment and 
order dated February 4, 1954, of the U.P. Board of 
Revenue in Appeal No. 96 of 1948-49. 
Dewan Charanjit Lai, for the appellants. 
S. P. Sinha, J. B. Dadachanji, S. N. AndLey and 
Rameshwar Nath, for the respondents. 
1957, November 21. The following Judgment of . 
the Court was delivered by 
VENKATARAMA AIYAR J.-The facts material for 
purposes of this appeal have been stated by us in our 
order dated February 6, 1957, and may be briefly re-
capitualted. The suit property is agricultural land of 
the extent of 10 Bighas, 13 Biswas. On July 8, 1930, 
the then owners of the land, Ram Prashad and Udai-
raj, executed a usufructuary mortgage over it and cer-
tain other properties, with which we are not concf;!rned 
in this litigation, in favour of Dwaraka Prashad, 
N aubat Singh and Munshilal. The lands were origi-
nally held in Sir by the mortgagors, but as part of 
· their bargain with the mortgagee's, they applied to 
have their names removed from the Sir, and that was 
done by an order dated June 18, 1930, the lands being 
thereafter entered as Khudkasht in the names of the 
mortgagees. In 1941, Ram Prashad, the surviving 
mortgagor, filed Suit No. 132 of 1941 for redemption 
of the mortgage. The suit was contested, but it was 
eventually decreed, the amount due to the mortgagees 
being fixed at Rs. 1,860. Subsequent to the decree, 
Ram Prashad died leaving him surviving, the appel-
lants herein, as his legal representatives. On Septem-
ber 6, 1945, the amount due under the mortgage was 
paid by them and the mortgage was redeemed. When 
they sought to take
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