MAHABIR GOPE AND OTHERS versus HARBANS NARAIN SINGH AND OTHERS.

Citation: [1952] 1 S.C.R. 775 · Decided: 14-04-1952 · Supreme Court of India · Bench: MEHR CHAND MAHAJAN · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

-· 
S.C.R. 
SUPREME COURT REPORTS 
MAHABIR GOPE AND OTHERS 
v. 
HARBANS NARAIN SINGH AND OTHERS. 
[MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR 
and VIVIAN BosE JJ.l 
775 
Bihar Tenancy Act, 1937, ss. 5(2), 20, 21-Zuripeslzgi lease--
Lease .by mortgagee for a term of 3 years-Lease continuing in 
possession for over 30 years-Whether acquires occupancy rights--
Construction of lease-Mortgagee's power to lease-Limitations--
Transfer of Property Act, (IV of 1882), s. 76 (a) and (e). 
As a general rule a person cannot transfer or otherwise confer 
a better title on another than he himself has and a mortgagee 
cannot therefore 
create 
an 
interest 
in 
mortgaged 
property 
which 
will 
enure beyond 
the 
termination 
of his 
interest as 
mortgagee. Further, a mortgagee cannot during the subsistence 
of the mortgage act in a manner detrimental to the mortgagor's 
interestJ;, such as by giving a lease which may enable 
the 
tenant 
to acquire permanent occupancy 
rights in 
the land, thereby 
defeating the mortgagor's right to khas possession. 
A permissible settlement by a mortgagee in possession with a 
tenant in the course of prudent management and the springing 
up of rights in the tenant conferred or created by statute based 
on the nature of the land and possession for the requisite period 
is an exception to the general rule, but to fall within this excep-
tion the settlement of the tenant by 
the mortgagee must have 
been a bona fide one. 
The exception will not apply in a case 
where the terms of the mortgage prohibit the mortgagee 
from 
making any 
settlement of tenants on the land either 
expressly 
or by necessary implication. 
Where a zuripeshgi ijara deed contained the following clause ; 
"It is desired that the ijaradars should enter into possession 
and 
occupation of the share let out in ijara (being the klzudkasht 
land under his own cultivation), cultivate them, pay 2 as. as 
reserved rent year after year to us, the executants, and appro-
priate the produce thereof year after year on account of his 
having the ijara interest" 
and 
the 
kabuliat 
executed 
by 
the 
tenant to whom the lands were leased by the mortgage for a 
period of 3 years referred to the ijara deed and contained an 
express provision that he (the tenant) would give up possession 
of the tika land on the expiry of the lease without urging any 
claim on the score that the lands were his kasht lands : Held, 
confirming the decision of the High Courr, that the settlement 
<.~was not a bona fide one and the successors of the tenant (the 
defendants) did not acquire permanent rights of occupancy in 
1952 
April 14. · 
1952 
Makabir Gope 
and Others 
v. 
HM!Jans Narain 
Singh 
and Others. 
776 
SUPREME COURT REPORTS 
[1952] 
the 
demised 
lands under the Bihar Tenancy Act even though 
the lands had been in the ocr:upation of the tenant and his suc-
cessors for over 30 years after the expiry of the lease. 
Held further, that the defendants could not acquire occupancy 
rights under sections 20 and 21 of the Bihar Tenancy Act as the 
mortgagee 
was 
neither a "proprietor" 
nor 
a "tenure holder .. 
or 
"under-tenure-holder" 
3.nd 
the 
tenant 
and 
his 
successors 
were not, 
therefore, 
"settled 
raiyats" 
within 
the 
meaning 
of 
section 5, cl. (2), of the said Act. 
Manjhil-Lal Biswanath Shah Dea v. Shaikh Mohiuddin (1.L.R. 
24 Cal. 272), Babu Bairo Nath Ray v. Shanke Pahan (I.L.R. 8 
Pat. 31) and Binda Lal Pakrashi and Others v. Kalu Pramanik 
and Others (I.L.R. 20 Cal. 708) distinguished. 
CrvrL 
APPELLATE 
JuRrsorsCTION 
Civil 
Appeal 
-~
,.
•
No. 143 of 1951. 
Appeal by special leave from the 
judgment aod decree dated 23rd March, 1950, of the 
High 
Court of Judicature 
at Patna 
(Reuben 
and 
· ~
Jamuar JJ.) in appeal from Original Decree No. 206 of 
1946 arising out of a decree dated 31st January, 1946, 
of the Subordinate Judge at Patna in 
Title Suit 
No. 55/4 of 1943-45. 
Saiyid Murtaza Faz/ Ali for the appellants. 
N. C. Chatterjee (A. N. Sinha, with him) for the 
respondents Nos. 1 to 9. 
B. K. Saran for the respondents Nos. 11 to 16. 
1952. April 14. The Judgment of the Court was 
delivered by 
CHANDRASEKHARA 
ArYAR J.-This is an appeal by 
the defendaots from a decree of the Patna High Court 
reversing a decree of 'the Subordinate Judge's Court 
·at Patna, and decreeing the plaintiffs' suit for posses-
sion against the 
defendant first party who may be 
called for the sake of convenience as 'the Gopes'. 
The lands were k hudk has 

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