GOVARDHAN DASS & 8 ORS. versus SMT. SITABAI

Citation: [1969] 1 S.C.R. 270 · Decided: 03-05-1968 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

Judgment (excerpt)

GOV ARDHAN DASS & 8 ORS. 
v. 
SMT. SITABAJ 
May 3, 1968 
[J. C. SHAH AND V. BllARGAVA, JJ.J 
Cenlral Prori11ces and Berar Tenc.ncy Act, 1883-Mortgage or 'sir' 
lands-Whether cultivating rights given up by n1ortgagors-Acqulsition of 
occupancy rights under ss. 12 and 13. 
Central Provinces Tenancy Act (I of 1922), ss. 12 and 13, 49 and 
50-Acquirilion of tenuncy rights by n1ortgagors tlzcreundcr-l~ffcct of 
purchase by 1nortgagee of the n1ortgagor~· rights in insolvency proceeding. 
The pre<lccc-;sors-in-intcrcst of the 
respondent executed 
usufrutory 
mortgage da'ds in 1898 in favour of the predecessors-in-interest of the 
appellants in respect of certain 'sir' land. 
Jn 1940 oI>O of 1he mortgagors, 
R, t!Y,, husband of respondent, was declared insolvent and his share in the 
proprietary rights which vested in the Jno;olvcncy Court \Vas purchased 
by the morlgagce. 
Some disputes arose about the amount and the right 
of redemption under the mortgage between the mortgagee and the other 
mortgagor S, the matter w:ls rCferrcd to arhitration. 
In pursuance 
of 
·the decree in this award, the mortgagee purchased the share of ·s· includ-
ing his rightc; in 'sir'. R died, and when his widow the respondent was dis-
possessed from the land in pursuance of the mortgage decree posSC<l in 
terms of the a\\·ard. she filC(l an application to the Revenue Court under 
s. 12 and s. f3 of the 
C~entral Provinces Tenancy Act for rCstoration 
of possession of her occupancy rights in the land, which was aHowed. 
Thereupon the appellants filed the suit claiming possession. which was 
partly allowc-0. 
Both the parties appealed and in appeals the suit was 
dismissed, which in furthct" appeals, was upheld hy the High C-Ourt. 
HELD : The. appcllantc; were not entitled to claim possession in this 
suit. 
The mere m::ntion of the 'sir' land as part of the property mortgaged 
can only be interpreted as laying dov.·n that the proprietary rights in the 
'sir' land "'·ere subject of the mortgages. so the cultivato'ry rights continued 
to remain \lt'ith the mortgagors. 
The circumstance was further borne out 
hv the fact that even after execution of the usufructuary mortgages in 
1895, the mortgagors continued to cultivate this land and actual possession 
over this land fo'r the purposes of cultivating it was not obtained by the 
mortgagee. 
In nv:;sc circumstances. it vt'as clear that the mortgagors 
must have become e:a::-proprietary occupancy tenants of this land in the 
year 1895. [273 G. HJ 
Even if the mortga~ors become ordinary tenants in 1895. it was clear 
that by tm time the Act came into force in the year 1920, they must 
have hecomc occupancy tenants as defin,ed in .s. 10 of the A71· 
So th.e 
claim of the appellants that they acquired rights to possession of this 
land on the basis of the mortgages in 1895, in these circ:umstances, must 
fail. [274 DJ 
The appellants• claim that the rights of S pO'sed to them when they 
purchased his right~ in execution of the decree under the award and that 
the shore of R passed to them when his rights were transferred by the 
Insolvency C-Ourt, fails in view of the provisions of s. 12 or s. 49 of the 
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rGOVARDF!AN v. SITABAI. (Bhargava, J.) 
271 
Act, as they then stood. 
As a result of these p"rovisions, 
the rights· of 
the ex-proprietory occupancy tenant could not have been transferied 
in favour of the mortgagees. 
Section 50, as it was at that time, did 
permit transfer of certain rights of an ex·proprietory occupancy tenant; 
but, to be valid such transfers required permission of the appropriate 
revenue authority. 
In this case, there is no suggestion that, when trans-
fers were obtained by the mortgagees in pursuance· of the decree in the 
award and in pursuance of the insolvency proceedings against R, the 
transfers purported to be .affected we're made with the permission of the 
appropriate authority. 
Consequently under s. 49 those transfers would 
be void. [274 H-275. CJ 
Section 12 barred the transfer of cultivatory rights of an occupancy 
tenant in execution of the decree of a civil court or in insolvency proceed-
ings. In fact, such rights did not vest in the Insolvency Court at all under 
the. Provincial Insolvency Act. 
Consequently, the mortgagees could not 
acquire title to cultivatory right by virtue of the proceedings taken in 
execution of the decree in civil suit or in the insolvency proceedings. 
The right continued to vest in the mortgagors an

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