SHANKAR SAKHARAM KENJALE (DIED) THROUGH HIS LEGAL HEIRS versus NARAYAN KRISHNA GADE AND ANOTHER

Citation: [2020] 4 S.C.R. 223 · Decided: 17-04-2020 · Supreme Court of India · Bench: MOHAN M. SHANTANAGOUDAR · Disposal: Dismissed

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Judgment (excerpt)

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223
SHANKAR SAKHARAM KENJALE (DIED)
THROUGH HIS LEGAL HEIRS
v.
NARAYAN KRISHNA GADE AND ANOTHER
(Civil Appeal No. 4594 of 2010)
APRIL 17, 2020
[MOHAN M. SHANTANAGOUDAR
AND R. SUBHASH REDDY, JJ.]
Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950
s.3(3), proviso – Whether the permanent Mirashi tenant -
mortgagor’s (respondents) right of redemption ceased to exist by
virtue of resumption of the suit land under the Abolition Act and its
subsequent re-grant in favour of the mortgagee (appellants) – Land
in question was Paragana Watan property/Inam land governed by
Bombay Hereditary Offices Act, 1874 – Watandar of suit land
inducted permanent Mirashi tenant who executed a mortgage deed
in favour of appellants – Bombay Paragana and Kulkarni Watans
(Abolition) Act, 1950 came into force with effect from 25.1.1951
with a view to abolish Paragana and Kulkarni watans – Original
watandar and Marashi tenant did not seek re-grant of suit land –
Mortgagee relying on Government Resolution paid the requisite
occupancy price and obtained re-grant of suit land in his favour in
1960 – Suit for redemption of mortgage filed by respondents –
Maintainability of – Held: It is well-settled that the right of
redemption under a mortgage deed can come to an end or be
extinguished only by a process known to law, i.e., either by way of
a contract between the parties to such effect, by a merger, or by a
statutory provision that debars the mortgagor from redeeming the
mortgage – Failure on the part of the mortgagor to pay the
occupancy price and seek re-grant is not fatal to his rights as a
Mirashi tenant as the tenancy in his favour continued to subsist
despite the introduction of the Abolition Act – Consequently, the
mortgage executed by him also survived the resumption of the suit
land under the Abolition Act, and it cannot be said that the
relationship of mortgagor-mortgagee ceased to exist by virtue of
such Act – As per s.90 of the Indian Trusts Act, 1882, if a mortgagee,
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[2020] 4 S.C.R. 223
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SUPREME COURT REPORTS
[2020] 4 S.C.R.
by availing himself of his position as a mortgagee, gains an
advantage which would be in derogation of the right of the
mortgagor, he must hold such advantage for the benefit of the
mortgagor – In the instant case, the conditions stipulated under
s.90 of the Indian Trusts Act were satisfied – The fact that the lessor/
Mirashi tenant did not claim re-grant is not relevant inasmuch the
right of redemption of a mortgagor is not extinguished by virtue of
re-grant in favour of the original defendant (mortgagee) inasmuch
as the re- grant was obtained and the property was held by the
original defendant for the benefit of the mortgagors – Therefore,
the advantage derived by the appellants (successors of mortgagee)
by way of the re-grant must be surrendered to the benefit of the
respondents (Mirashi tenant-mortgagor) subject to payment of
expenses incurred by them in securing the re- grant – High Court
was justified in decreeing suit for redemption – Bombay Hereditary
Offices Act, 1874 – Indian Trusts Act, 1882 – s.90.
Dismissing the appeal, the Court
HELD: 1. Admittedly, lease was subsisting as on
25.01.1951, i.e., the day on which the Abolition Act came into
force. The proviso to Section 3(3) of the Abolition Act envisages
that the resumption of watan land to the Government under the
Abolition Act does not affect the rights of an alienee of the
watandar or his representative of such land under the Watan Act
or that of any person claiming through or under him. Further, in
respect of watan land that has been lawfully leased and wherein
the lease is subsisting on the day appointed for the coming into
force of the Abolition Act, Section 8 of the Abolition Act accords
primacy to the Bombay Tenancy and Agricultural Lands Act, 1948
in governing the rights and liabilities of the holder of such land
and his tenant(s). In the instant case, the rights of a lawful
permanent Mirashi tenant would survive resumption of the suit
land to the Government by virtue of the proviso to Section 3(3)
as well as Section 8 of the Abolition Act. This is because the
tenancy created in favour of the Mirashi tenant subsisted as on
the day on which the Abolition Act came into force, thereby
implying that his tenancy rights were protected and continued to
be governed by the Bombay Tenancy Act despite the introduction
of the Abolition Act. This is well-aligned with the general primacy
accorded to tenancy laws over

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