Bakshish Singh and Others vs Balwant Singh and Others

D.K. Mahajan, J.—This order will dispose of Regular Second Appeal Nos. 100, 101 and 102 of 1958.

Three different suits were filed and they have been disposed of by three separate judgments but in fact the judgment in each one of them is identical in language excepting with regard to the area of the laud and the amount of the mortgage because there were three separate mortgages and that was the reason for three separate suits,

On facts there is no dispute. The land in dispute comprises of occupancy tenancy of which Muslims were the occupancy tenants. The village proprietors are the landlords who are the plaintiffs in the present suits out of which these appeals have arisen. The occupancy tenants mortgaged their occupancy tenancies to the respondents. Later on they sold the equity of redemption to the respondents. The sale of equity of redemption was objected to by the landlords by a suit u/s 60 of the Punjab Tenancy Act. This suit was decreed and the sale was set aside. After the partition of the country the occupancy tenants, that is, Muslims have migrated to Pakistan. The mortgagees are in possession of the land. The present suits have been filed by the landlords for redemption of the land u/s 91 of the Transfer of Property Act. The trial Court decreed the suits. The lower appellate Court has dismissed the suits on the short ground that the landlords have no right to redeem the mortgage created by the occupancy tenants. Hence the present second appeals.

Mr. Gujral, learned counsel for the respondents, has raised a preliminary objection that the appeals abate because Chajja Singh one of the appellants died long ago and his legal representatives have not been brought on the record. It is also pointed out that one of the respondents Naranjan Singh had also died. He is a respondent only in R.S.A. Nos. 100 and 102, No application was made during the period of limitation to implead his legal representatives. An application has now been made beyond limitation but it is pointed out that some of the legal representatives of Naranjan Singh are already on the record as respondents. In one appeal, his one son and in the other his two sons are there. Naranjan Singh has left a daughter who is not a party in any one of these appeals. In my view it is not necessary to deal with the question of abatement because these appeals must fail on the merits.

The lower appellate Court has dismissed the suits of the plaintiffs on the short ground that they have no right of redemption u/s 91 of the Transfer of Property Act. It is not the plaintiffs'' case that they are the mortgagors. Therefore the provisions of section 60 of the Transfer of Property Act do not come into play. u/s 91 of the Transfer of Property Act the following: three classes of persons have a right of redemption-

(a) Any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same;

(So far as the other two classes of persons mentioned in section 91 are concerned, admittedly the plaintiffs do not fall and therefore it is not necessary to notice them).

The only ground on which the plaintiffs say that they are entitled to redeem is that they are the landlords of the occupancy tenants but it has been held in Ganpat v. Bhangi 15 C.P.L.R. 175 and Jaggeswar Dutt v. Bhuban Mohan ILR 33 Cal. 495, that if a tenancy is subsisting the landlord has no present interest and so the landlord cannot redeem a mortgage by an occupancy tenant. No decision taking contrary view has been cited at the Bar.

The only contention advanced by Mr. Doabia is that the occupancy tenants having become evacuees, the tenancy vests in the landlord. I am unable to agree with this contention for the simple reason that all evacuee property vests in the Custodian and the occupancy rights have also vested in the Custodian. It is the Custodian who would be entitled in the circumstances of the present case to sue for redemption or to take benefit of the Evacuee Interest (Separation) Act. So far as the present plaintiffs are concerned they have no right to redeem the mortgages created by the occupancy tenants. In this view of the matter I uphold the decisions of the lower appellate Court and dismiss the present appeals but I will make no order as to costs in any of these appeals.