Harihar Pandey vs Vindhayachal Rai and Others

Reuben, J.—This is an appeal by defendant 1. It arises out of a suit for the declaration of the zarpeshgi right, of the plaintiffs in certain property, for the recovery of possession over it and for mesne profits.

The property originally belonged to defendants 3 to 7, who executed a zarpeshgi in favour of defendant 8 on 12th April 1924. The plaintiffs base their title on a deed of assignment, Ex. 3, in their favour executed by defendant 8 on 3rd March 1938 for a consideration of RS. 1000. The appellant challenges the passing of title under the assignment, on the ground that at the time of the assignment the zarpeshgi interest was attached in Money suit No. 26 of 1935 brought by the father of the appellant against defendant 8.

The appellant claims the title as vested in himself by virtue of a civil court sale in the year 1940 in execution of the decree in suit No. 26 of 1935. The defence was rejected by the Courts below on the finding that the zarpesbgi interest was not effectively attached so as to prevent the passing of interest by the assignment, the ground being that the interest is immovable property and the attachment was made as of movable property.

Mr. Kailash Rai has urged three points : 1. That the zerpeshgi interest is movable property; 2. That even if it is immovable, the requirements of the law for the attachment of immovable property have been substantially complied with; and 3. That, under the assignment, no title or at most an imperfect title passed.

In the CPC there is no definition of "immovable property" and "movable property" is defined in inclusive terms as including growing crops. Therefore, in the absence of anything repugnant in the Code, the meaning to be assigned to these terms must be ascertained with reference to the General Clauses Act, 1897, the relevant provisions of which are:

Section 3, Clause (25): "Immovable property shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth.

Section 3, Clause (34):"Movable property shall mean property of every description, except immovable property.

These definitions divide all the property into two distinct classes, immovable property as to which we are given only an inventory of things that it includes movable property, which is every form of property which is not immovable property. This definition of immovable property, even though it is not complete and exhaustive, makes it clear that immovable property is not merely land, that is to say something physical, but includes immaterial rights arising out of land. It is in this sense that the ownership of land is said to constitute immovable property, and it consists of the sum total of rights arising out of the land.

Now, under the law, it is permissible to the owner of land to part with his rights either in whole or in part. One way in which he may part with his rights in part is by mortgage and Section 58, T.P. Act defines a mortgage as "the transfer of an interest in specific immovable property." So the interest of a mortgagee is made up of some of the rights, the whole of which rights go to make up the immovable property. In the absence of any reason to the contrary, we are justified in taking it that the interest of the mortgagee is the same in character as that of the owner of the property, that is to say, it is immovable property. This is a view that has commended itaelf to several eminent Judges: Maclean C.J. in Paresnath Singha v. Nacogopal 29 Cal. 1 ; Mukharji and King JJ. in Jang Bahadur Vs. Bhagat Ram-Sheo Prasad ; Rankin C.J. and Ghose J. in Imperial Bank of India Vs. Bengal National Bank Ltd., .

A contrary view was taken by Rampini J. in the case of Paresnath Singha who at p. 18 (29) Cal. 1, observed that a mortgagee is only the owner of an interest in immovable property, which is a different thing from immovable property. Much reliance was placed by Mr. Kailash Rai on this remark, and he urged that the other Judges of the Full Bench did not take notice of the decision of Fadu Jhala v. Gour Mohun 19 Cal. 544 referred to by Rampini J. That case, however, was concerned with the question whether a right of fishery is immovable property within the meaning of the Specific Relief Act, an Act which raised entirely different considerations. This is clear for instance from the judgment of Patheram C.J. in that case, where he concedes that a right of fishing is immovable property within the definition of the term in the General Clauses Act, but points out that the whole of Section 9, Specific Relief Act is repugnant to the idea that immovable property in that section includes an incorporeal right of this kind belonging to some one other than the owner of the land. This appears also from the judgment of O''Kinealy J. which is particularly referred to by Rampini J. His Lordship observed that the Specific Relief Act "did not cover all kinds of property movable and immovable, but only such as were capable of being taken possession of, and of which possession could be delivered." The distinction drawn by his Lordship, therefore between immovable property and an interest in immovable property is no authority for holding that an interest in immovable property cannot be itself immovable property. With due respect to Rampini J., I would suggest that the difference, apart from special considerations arising out of the contest of the Act under consideration, is one of degree and not of kind.

Mr. Kailash Rai has also relied on the case of Debendra Kumar v. Ruplall 12 cal. 546, another case referred to by Rampini J., but not by the other members of the Pull Bench. In that case their Lordships without discussing their reasons for it, held that a simple mortgagee''s interest is not immovable property. The case is distinguishable, because here we are concerned with the interest of an usufructuary mortgagee and their Lordships, in coming to their finding stressed that they were dealing with a simple mortgage; but the reason which I have given above for holding a mortgagee''s interest to be immovable property applies with equal force to a simple mortgage, and I prefer to follow the decision of the majority of the Full Bench in Paresnath Singha''s Case 29 cal. 1.

Another reason given in reported decisions for holding a mortgagee''s interest to be immovable property, is that it comes within the term ''benefits to arise out of land'' occurring in the definition in the General Clauses Act: Paresnath Singha''s case pages 6-7 and 23-24 29 Cal. 1 , Jang Bahadur Vs. Bhagat Ram-Sheo Prasad . In view of what I have said above it is not necessary to rely on this ground, the correctness of which was challenged by Rampini J. (Paresnath Singha''s case, page 18 29 cal. 1 , whose opinion is supported by the remarks of Rankin C.J. and Ghose J.: Imperial Bank of India Vs. Bengal National Bank Ltd., .

Richardson J. in Sakhiuddin v. Sonaulla A.I.R.1918 Cal. 411 suggested another line of reasoning which supports my view that a mortgagee''s interest is immovable property. As the Transfer of Property Act was originally enacted, an "actionable claim" included a debt secured by a mortgage, and u/s 130 an actionable claim could only be transferred by an instrument in writing. Now, by an amendment of the year 1900, a debt secured by a mortgage is not an actionable claim. If it was movable property, the effect of the change would be that it would be transferred orally. His Lordship observed:

...it can hardly be supposed that debts secured by the mortgages of immovable property were excluded from the definition of actionable claims in order that they might pass by word of mouth without any writing. The inference would seem to be that the Legislature regarded such debts as immovable property within the definition in Section 3(25), General Clauses Act of 1897.

Mr. Kailash Rai has also referred to a passage in Sri Raja Papamma Rao v. Sri Virapratapa 19 Mad. 249 where their Lordships of the Judicial Committee observed that in a simple mortgage "there is no transfer of ownership". This remark has to be understood in the light of the facts of that case, which have nothing whatever in common with the case before us. There a suit brought by a simple mortgagee to enforce his mortgage had resulted in a decree putting him in possession of the property mortgaged. Then, a suit was brought by the successor in interest of the mortgagor for the restitution of the property on the plea that the mortgage debt had been satisfied. The question which arose was the nature of the possession which was given to the mortgagee under the earlier decree, whether it was in the nature of a foreclosure preventing the mortgagor from suing to recover possession. This decision was, therefore, rightly distinguished in Paresnath Singha''s case (pp. 4 and 9) 29 cal. 1.

Upon the above grounds, I would decide the first point against the appellant and would hold that the interest in question was immovable property.

This brings me to the second point. The attachment was one under Order 38, Civil P.C. Rule 7 of this Order provides that subject to express provision to the contrary, attachment shall be made in the manner provided for the attachment of the property in execution of a decree. In this case, therefore, attachment should have been made as provided in Order 21, Rule 54. The order of attachment in the present case was issued in Form 5 of Appendix F to the Code. Mr. Kailash Rai urges that the Courts below erred in holding: that the attachment was bad because this form was used instead of Form 24 of Appendix E, and he argues that the service of this defective warrant was in fact sufficient to comply with the requirements of Order 21, Rule 54.

Turning to Order 21, Rule 54, the first essential of a legal attachment is

an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.

This is exactly what Form 24 of Appendix E is, an order addressed to the judgment-debtor-directing that he is "hereby prohibited and restrained until the further order of this Court, from transferring or charging the property specified in the schedule hereunto annexed, by sale, gift, or otherwise and that all persons, be and that they are, hereby prohibited from receiving the same by purchase, gift or otherwise". The order that was published, however, was in Form 5, Appendix F that is to say a direction to the bailiff of the Court to call on the defendant to furnish, security to produce certain property or the value thereof sufficient to satisfy any decree that might, be passed against him, or to appear and show cause why he should not furnish such security and further to attach the said property and keep the same under safe and secure custody until the further order of the Court. It was this order that according to the evidence in the case, was published on the suit land by beat of drum. Obviously the first requisite of Order 21, Rule 54, was not complied with, and there was no valid attachment.

For his third contention, Mr. Kailash Rai relies on the fact that, at the time of the assignment, the zerpeshgi deed bad been attached and was in the custody of the Court. He con tends that the zarpeahgi deed was not merely the instrument by which the zarpeshgi interest was created, but it was also "the custodian of the right" and, therefore, in the absence of the document the zarpeshgidar could not transfer the interest. He is unable to cite any authority for this novel proposition. He seeks to support his contention by a reference to the fact that there is a prohibition in law against proving the zarpeshgi interest except by a production of the original zarpeshgi deed. This is merely a rule of evidence embodied in Section 91, Evidence Act, and proceeds on the principle that, where an agreement has been reduced to writing, the Court will insist on the production of this document as being the best proof of the agreement, unless circumstances exist making it necessary or reasonable to accept secondary evidence. This does not mean that the interests arising out of the agreement somehow become identified with the instrument itself, and it is only as evidence of the agreement that Section 91, Evidence Act, deals with it. If the interest itself was vested in the zerpeshgidars and it was a transferable interest, neither of which facts is denied, no impediment to his transferring that interest can arise out of his not having in his possession the instrument by which the interest was created. On the above grounds, I would decide all the three points against the appellant, and dismiss the appeal with costs.

Mukharii J

I agree.