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HIGH COURT OF NAGPUR
Hidayatullah, Mangalmurti
JANKILAL RAGHUNATH RAI AND ORS – Appellant
Versus
JABARSINGH MADANSINGH AND ORS – Respondent
Second Appel No. 629 of 1948
Decided on : 12-10-1955
CENTRAL PROVINCES LAND ALIENATION ACT - MORTGAGE - COMMENCEMENT OF ACT - EXTENSION OF ACT TO AN AREA - DECLARATION OF ABORIGINAL TRIBE - INTERPRETATION OF SECTIONS 2(3), 4(2), 6(1), 7, 8, 9(1), 9(2), 9(3), 25(2) - EFFECT OF NOTIFICATION UNDER SECTION 3 - APPLICABILITY OF ACT TO MORTGAGE - REVISION OF MORTGAGE BY DEPUTY COMMISSIONER - REFERENCE TO DEPUTY COMMISSIONER BY CIVIL COURT - REVISION OF DECREE OR ORDER BY DEPUTY COMMISSIONER - REPRESENTATION OF SONS BY FATHER IN SUIT - BINDING EFFECT OF DECREE AGAINST FATHER ON SONS - HINDU LAW - JOINT FAMILY - DECREE AGAINST MANAGER - BINDING EFFECT ON SONS.
Fact of the Case:
A mortgage was made by a member of an aboriginal tribe in 1926. The Central Provinces Land Alienation Act, 1916, which came into force on 15th April 1917, was extended to the Bilaspur tahsil of the Bilaspur district by notification on 14th November 1933. By another notification on the same date, the State Government declared that all persons belonging to the Kanwar tribe who either hold land or ordinarily reside in the villages of the Bilaspur tahsil of the Bilaspur district would be deemed to be an aboriginal tribe for the purposes of the Act. In 1936, a suit was filed against the mortgagor for foreclosure of the mortgage. A preliminary decree for foreclosure was passed on 1st October 1936 and a final decree for foreclosure was passed on 7th February 1938. The mortgagor's sons filed a suit for a declaration that the decrees were null and void and for possession of their share in the mortgaged property.
Finding of the Court:
The court held that the Central Provinces Land Alienation Act applied to the mortgage and governed the mortgage suit and the preliminary and final decrees obtained in the suit. The court also held that the decrees were not binding on the mortgagor's sons as their father did not represent them in the suit and did not act in their interest.
Issues: 1. Whether the Central Provinces Land Alienation Act applied to the mortgage and governed the mortgage suit and the preliminary and final decrees obtained in the suit. 2. Whether the decrees were binding on the mortgagor's sons.
Ratio Decidendi: 1. The court held that the Central Provinces Land Alienation Act applied to the mortgage and governed the mortgage suit and the preliminary and final decrees obtained in the suit because: (a) The Act was brought into force on 15th April 1917 and was extended to the Bilaspur tahsil of the Bilaspur district on 14th November 1933. (b) The Kanwar tribe was declared to be an aboriginal tribe for the purposes of the Act on the same date. (c) The mortgage was made by a member of an aboriginal tribe after the commencement of the Act. (d) The Act provides that any condition in a mortgage which is intended to operate by way of conditional sale is null and void. 2. The court held that the decrees were not binding on the mortgagor's sons because: (a) Their father did not represent them in the suit. (b) He did not act in their interest by raising the pleas available under the Central Provinces Land Alienation Act in the suit. (c) He was grossly negligent in the conduct of the case.
Final Decision: The court allowed the appeal in part and modified the decree passed by the Court of first appeal to make Madansingh's joint or undivided share liable. The Plaintiffs were entitled to a declaration that the decrees did not affect their interest in the property. They are entitled to a decree for joint possession in the suit property on condition that they do deposit in Court within three months from today a sum of Rs. 700/- less their costs awarded in this suit and the appeal therefrom as ordered in the Courts below for payment to the Defendants. If they do not make the deposit the suit shall stand dismissed with costs throughout.
1. This second appeal arises out of a suit brought by Jabarsingh, Dalsingh, Shatruhansingh and Chatursingh sons of Madansingh of mouza Chisda, tahsil Bilaspur, for a declaration that the decree dated the 1st October 1936 and the 7th February 1938 in Civil Suit No. 78-A of 1936 were null and void and for possession of two annas share in patti No. 1 of that village. Madansingh had mortgaged this village share with the Defendants Jankilal, Matadin and Gajadhar (Defendants Nos. 1 to 3) for Rs. 1,200/- on the 3rd August 1926. It was a mortgage by conditional sale. On the basis of this mortgage the mortgagees obtained in Civil Suit No. 78-A of 1936 filed on the 18th August 1938 a preliminary decree for foreclosure on the 1st October 1936 and a final decree for foreclosure on the 7th February 1938 against Madansingh alone. In pursuance of the final decree the mortgagees obtained possession of the mortgaged property on the 7th April 1938 and subsequently mutation was also effected in their names on the 15th September 1938.
2. After the date of the mortgage (dated the 3rd August 1926) and before the suit (Civil Suit No. 78-A of 1936) was filed, the Central Provinces Land Alienation Act, 1916, which came into force on the 15th April, 1917, was extended to the Bilaspur tahsil of the Bilaspur district by notification No. 4442-2738-XII, dated the 14th November 1933 issued under Sub-section (2) of Section 1 of the Act, and by notification No. 4443-2738-XII, dated the 14th November 1933 issued under Section 3 ibid the State Government declared that all persons belonging to the Kanwar tribe who either hold land or ordinarily' reside in the village of the Bilaspur tahsil of the Bilaspur district would be deemed to be an aboriginal tribe for the purposes of the Act.
After the mutation of the names of the decree-holders was effected in the revenue records, the Deputy Commissioner made an application under Section 25(2) of the Act on, the 7th December 1933 to-the Additional District Judge, Bilaspur, to set aside the aforesaid decrees for foreclosure on the ground that they were contrary to the provisions of the Cental Provinces Land Alienation Act. By his order dated the 10th February, 1940, in Miscellaneous Judicial Case No. 74 of 1938 the Additional District Judge declared that the said preliminary and final decree were ultra vires and illegal and set them aside. The amount due to the mortgagees under the mortgage was determined and the case was referred to the Deputy Commissioner, Bilaspur,. under Section 9(3) of the Act.
The mortgagees filed Civil Revision No. 256 of 1940 to set aside the order passed by the Court of. the Additional District Judge, Bilaspur. The non-Applicants were Madansingh, the mortgagor, and. the Deputy Commissioner, Bilaspur. Clarke J. on the 13th February, 1941, set aside the order passed by the Court of the Additional District Judge: Jankilal v. Deputy Commissioner, 1941 AIR(Nag) 163 (A). Two applications for the review of the order of Clarke J. were filed. They were dismissed with the observations: We have no doubt that a wrong view of law was taken by Clarke J. but we have no power to review his order on the ground stated in the application for review.
The decision of the Division Bench, is published. in Madansingh v. Deputy Commissioner, 1944 AIR(Nag) 371.
3. The sons of Madansingh then filed the suit out of which this second appeal has arisen. The trial Court decreed the Plaintiffs' suit holding that the term about conditional sale in the mortgage was null and void under the Central Provinces Land Alienation Act which applied to the case and the decrees obtained on the foot of the mortgage being in contravention of the Act, were null and void and not binding on the Plaintiffs The Court of first appeal upheld the findings of the trial Court but modified its decree by making possession conditional on the Plaintiffs paying to-the Defendants Rs. 700/- which part of the mortgage-debt was found binding on the Plaintif
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