RAM ADHAR SINGH (DEAD) THROUGH LRS. & ORS. versus BANSI (DEAD) THROUGH LRS. & ORS.

Citation: [1987] 2 S.C.R. 595 · Decided: 06-03-1987 · Supreme Court of India · Bench: A.P. SEN · Disposal: Dismissed

Judgment (excerpt)

RAM ADHAR SINGH (DEAD) TIIROUGH LRS. & ORS. 
v. 
BANS! (DEAD) THROUGH LRS. & ORS. 
MARCH 6, 1987 
[A.P. SEN AND V. BALAKRISHNA ERADI, JJ.) 
A 
B 
U. P. Zamindari Abolition and Land Reforms Act, 1951-Section 
21(J)(d)-Usufructuary mortgage by an occupancy tenant-Not valid 
in eye of law-Mortgagee entitled to retain possession only till repay-
-
.,,-'> ~ ment of mortgage debt. 
c 
-
.l.. 
Recovery of Rents (Bengal) Act, 1859-Section 6---Usufructuary 
mortage of occupancy holding-Impermissible. 
U.P. Debt Redemption Act, 1940--All usufructuary mortgages 
became self-liquidating mortgages. 
D 
The first respondent's suit under Section 202 of the U.P. 
Zamindari Abolition and Land Reforms Act, 1951 for possessing on 
payment of the mortgage money and ejectment of the appellants under 
Section 21(1)(d)·of the Act was resisted on the gronnd that the right of 
redemption stood extinguished in the year 1929 as the nsufructuary 
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mortgage which was executed when the Recovery of Rents (Bengal), 
Act, 1859 was in force, was a valid one and the mortgagors, the pre-
decessors in interest of the respondent had lost all their rights titles and. 
interest in the land. The Judicial Officer dismissed the suit . 
On appeal, the Additional Commissioner decreed the first res-
F 
pondent-plaintiff's suit holding that the usufructuary mortgage of occu-
pancy rights was valid only in a qualified sense in that the appellants 
were entitled to retain possession until the mortgage debt was paid and 
that no tenancy law right from the Recovery of Rents (Bengal) Act, 1859 
to U .P. Tenancy Act, 1939 ever made the occupancy rights trans-
ferable. 
The appeal to the Board of Revenue having been dismissed, the 
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.)I( 
appellants moved the High Court under Article 226 and a Single Judge 
of the High Court dismissed the writ petition and upheld the order of 
the Board of Revenue. 
H 
595 
596 
SUPREME COURT REPORTS 
[1987] 2 S:C.R. 
A 
On appeal, the Division Bench held that the transaction of the 
':'f' 
present kind was not a mortgage properly so-called hut yet was a mort· 
gage within the meaning of Section 2l(l)(d) of the Act. 
In appeal to this Court, challenging the correctness of the view of 
the High Court, it was contended that both the Board of Revenue as 
B well _as the High Court failed to appreciate that the usufructuary mort-
gage in question was executed at a time when the Recovery of Rents 
y, 
(Bengal) Act, 1859 was in force, and that a usufructuary mortgage was 
valid under Section 6 of the Act. 
- -.4..., ... 
Dismissing the appeal, this Court, 
c 
HELD: 1.1 The settled law as administered in the then United 
Provinces was that a usufructuary mortgage of an occupancy holding , 
was invalid and there was no transfer of an interest by the occupancy 
tenant and the mortgagee acquired no right other than the right to 
retain possession and fall back upon the stipulation in the so-called 
D 
mortgage bond till his money was paid. [599C·D) 
1.2 The view that a usufructnary mortgage by an occnpancy 
tenant was not valid In the eye of law has been accepted by the Legisla· 
~ 
lure in clause (d) of Section 21(1) of the U.P. Zamindari Abolition and 
Land Reforms Act, 1951 and the matter stands concluded by the 
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doctrine of stare decisis. To hold otherwise now would imply not only 
unsettling the law which has stood the test of time for over 100 years but 
would have the effect of reopening transactions past and closed and 
unsettling titles. [599D·El 
• 
2.1 There is nothing in Section 6 of the Recovery of Rents 
:~ 
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(Bengal) Act to sugest that a usufructuary mortgage of an occupancy 
holding like the transaction in question was permissible. [599F) 
2.2 The right of occupancy tenant was not transferable under 
Section 6 of the Act and in case of such a transfer the tenant would be 
deemed to have abandoned tbe holding and, therefore, the right of an 
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occupancy tenant cannot be set up by the purchaser in defence to a suit 
' 
for ejectmeot by the zamindar. [ 600B I 
.~. 
3. In the instant case, the relationship of the parties was 
regulated by the stipulations contained in the mortgage bond and under 
the terms the appellants were entitled to retain possession till the mort· 
H gage debt was paid off. Under the U.P. Debt Redemption Act, 1940, all 
R.A. SINGH v. BANS! [SEN, J. J 
.. 597 
usufructnary mortgages became self-liquidating mortgages. The mort· A 
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gage money would be deemed to have been paid off. [ 600F -GI 
Narendra N

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