PRATAP CHAND versus RAM NARAYAN AND ANOTHER.

Citation: [1961] 3 S.C.R. 913 · Decided: 22-02-1961 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed
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Judgment (excerpt)

3 S.C;R. 
SUPREME COURT REPOR'fS 
913 
PRATAP CHAND 
v. 
RAM NARAYAN AND ANOTHER. 
(P. B. GAJENDRAGADKAR, and K. N. WANOHoo, JJ.) 
Mo1tgoge-Entire proprietary rights mortgaged-Sir lands not 
mentioned-If included in the mortgage-Other londs of the mort-
gagor coming ifltn mo•tgagee's pos<ession, if accession to the mortgage 
-Transfer of Propert:• Act, I882 (4 of i882). s. 70. 
One Ramr.handar e]iecuted a simple mortgage deed without 
possession of his share in the property in dispute in favour of the 
respondents and others the relevant portion of which ran thus:-
"I do hereby mortgage without possession half share. five 
annas and four pies, area 678·31 acres, jama · sarkar Rs. 326/10/8 
together with Khudkashat,. chhc.taghas, big shrubs, abadi, gair 
abadi, cultivated and that lying vacant, and the rights and 
privileges appertaining to water, forests, chahat, gardens, and 
right of cultivation, malguzari and trees of every kind whether 
giving fruits or no fruits and prohibited and unprohibited wood 
with entire rights and privileges appertaining to the village." 
After the mortgage Ramchandar's share was sold to the 
appellants and certain other lands recorded in Ramchandar's 
mother's name also came into the possession of the appellant. 
The main questions arising for decision were whether the 
mortgage included the sir land of Ramchandar and whether the 
other lands corning into the possession of the appellant were 
accession to the mortgage. 
Held, that as the mortgage deed stood it was a mortgage of 
all the proprittary rights in the mortgagor's share in the property 
including the proprietary right in the sir pertaining to that share. 
As the mortgage was without possession the mortgagor was 
not losing possession of his sir and it was· not necessary for him to 
make an application under s. 50 of the Central Provinces Tenancy 
Act relating to the reservation of a right of occupancy. 
Sections 49 and 50 come into play when the propriet.or making a 
transfer loses his right to occupy any portion of his sir land 
temporarily or permanently. 
Although in the plaint of the suit based on the mortga~e no 
mention was made of sir, the entire proprietary right m sir, 
kliudkashat etc. relating tn the mortgagor's share would be sold on 
a decree passed in the suit. 
The words " all rights pertaining to the share " appearing in 
the sale certificate following the execution of the decree in the 
mortgage suit passed in favour of the respondents would include 
the mortgagor's proprietary rights in the sfr land and the respond-
ents by their sale certificate would get a right in the sir 
land also. 
Ftb1uary aa. 
Pratap Chand 
v. 
Ram Narayan 
914 
SUPREME COURT REPORTS 
[1961] 
As the appellant had purchased the entire share of Ram. 
chandar who was later ejected from his ex-proprietary tenancy 
which came into the possession of the appellant as lambardar 
his sir land which thus .came into the appellant's possession while 
the mortgage was subsisting became an accession to the mortgage 
under s. 70 of the Transfer of Property Act and the mortgagees 
were entitled to half share in the lands which came into the 
appellant's possession. 
The lands recorded nominally in the name of 
Ramcha~dar's 
mother but in the actual possession of the former having also 
came into the possession of the appellant as lambardar were held 
by him for the entire body of proprietors and the respondent 
would be entitled to a share in them. The respondent's claim to 
those lands were not barred by 0. II, r. 2 of the Code of Civil 
Procednre merely because they were not mentioned in the plaint 
of the mortgage suit. 
Hazarilal v. Hazarimal, A.LR. 1923 Nag. 130 and Seth 
Manakchatld v. Chaube Manohar Lal, A.LR. 1944 P.C. 46, held not 
applicable. 
CIVIL Al'PELLATE JURISDICTION: Civil AppPal No. 
272of1956. 
·Appeal from the judgment and decree dated 
June 28, 1954, of the former Nagpur High Court, in 
First Appeal No. 107 of 1946. 
M. O. Betalvad, Attmmy-General for lrul,ia, Purslwt-
fam Trikamdas, 8. T. Kkirwadkar and I. N. Shroff for 
the appellant. 
Achhru Ram, A. R. Okaubey and N aunit Lal for the 
respondents. 
1961. February 22. The Judgment of the Court was 
delivered by 
· 
Won.Ano J. 
W ANOHOO, J,:_This is an appeal on a certificate 
granted by the Nagpur High Court. The brief facts 
necessary for present purposes are these. One Ram. 
chandar Jat originally owned Annas -10/8 share in 
Mauza Tamala.wadi while the rest belonged to others
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