Sarup Singh and Others vs Bhagwan Dass

Kapur, J.—This is an appeal brought by the judgment-debtors against an appellate order of District Judge Jagjit Singh Bedi dated 19-4-1952 dismissing the judgment-debtors'' objections u/s 47, Civil P. C. and allowing the execution to proceed.

The facts of this case are given at great length in my judgment -- ''Sarup Singh v. Bhagwan Dass'', AIR 1952 Punj 212 (A), and it is not necessary to repeat them. Now, the objections raised u/s 47, Civil P. C. are that the formalities required by law in regard to attachment have not been complied with and that the property is evacuee property and as such cannot be attached and sold in execution of the decree. The property in dispute which is sought to be sold are mortgagee rights in favour of the judgment-debtors in lands which belong to persons who are now evacuees.

The learned District Judge has hold that the argument in regard to the non-compliance with the provisions of Order 21 Rule 54, Civil P. C., has not been made out and that the formalities required have been complied with.

When the matter was placed before my learned brother Dulat J. the real question which arose for determination was whether mortgagee-rights in lands, belonging to a person who has become an evacuee, are also exempt from attachment and sale. The mortgage had been created in favour of the present judgment-debtors by a Muslim who has now become an evacuee and it was this estate which was sought to be attached and sold in execution.

''Mortgage'' has been defined in Section 58(a), T. P. Act as "transfer of an interest in specific Immovable property ......" and this interest is itself capable of transfer. Thus a mortgagee can transfer by way of sub-mortgage or by way of sale his rights in property mortgaged to him. Therefore, according to the notions of property, there are two estates created in the same property, that is, equity of redemption and mortgagee-rights. Although mortgage is a transfer of specific Immovable property to secure a debt, the mortgagor none-the-less remains the owner of the specific property charged although mortgagee-rights are separate rights which vest in somebody else the mortgagee, Salmond on Jurisprudence P. 442 (10th Ed.).

Before the amendment of 1953 ''evacuee property'' was defined in Section 2(f), Administration of Evacuee Property Act, Act 31 of 1950, as follows:

" ''Evacuee property'' means any property in which an evacuee has any right or interest (whether personally or as a trustee or as a beneficiary or in any other capacity) and includes any property."

and in Section 2(i) ''property'' was defined to mean property of any kind and includes any right or interest in such property. The question for decision is whether mortgagee-rights which are vested in a person who is not an evacuee are, by themselves evacuee property, Mr. Shamair Chand submits that they are, and he relies on a Division Bench Judgment -- ''Shaikh Mohammed Din v. Thakur Singh'', AIR 1952 Punj 428 (B).

In that case the mortgagee had brought a suit for enforcement of his mortgage by sale of the property and it was in that connection that it was held that the property was evacuee property because what was sought to be sold in that case was not mortgagee-rights but the whole of the property as is provided for under Order 34, Civil P. C., and in deciding that matter at p. 431 Khosla J. observed :

"The next point to consider is whether mortgagee-rights not being rights which belong to an evacuee can be deemed to be evacuee property. This argument really makes no difference to the case because it was the whole property which was ordered to he sold and not only the mortgagee rights therein ***."

and then the learned Judge went on to give his interpretation of Section 2(f), Administration of Evacuee Property Act. In my opinion that question really did not arise.

In the present case what is sought to be sold, as I have said, are mortgagee-rights as distinct from the specific Immovable property mortgaged and also as distinct from the equity of redemption which vest in the mortgagor himself. As I read the section, it is not evacuee property which is being sold but the rights of the present judgment-debtors which are mortgagee-rights which are not evacuee property.

The Legislature has now amended the Act by Section 2(a) of Act 11 of 1953 and under the new definition ''Evacuee Property'' means ''any property of an evacuee'' (whether held by him as owner or as a trustee or as a ''beneficiary or as a tenant or in any other capacity), "and includes any property" which has been obtained by any person from an evacuee after 14-8-1947, by any mode of transfer which is not effective by "reason of the provisions contained in Section 40."

And this definition makes it clear that it is the property of an evacuee which is evacuee property and not any right or interest therein. This really makes the position clearer and as was said in -- '' AIR 1941 5 (Federal Court) the law to be applied at the time of second appeal is the law in existence at the time the appeal is decided, and therefore the new definition would really be applicable and under this mortgagee-rights which are vested in the judgment-debtors are not evacuee property. I would therefore dismiss this appeal with costs.

Dulat, J.

I agree.