Full Judgment Text
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PETITIONER:
JAMSHED JAHAN BEGAM & ORS.
Vs.
RESPONDENT:
LAKHAN LAL & ORS.
DATE OF JUDGMENT:
25/09/1969
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
SHELAT, J.M.
DUA, I.D.
CITATION:
1971 AIR 1678 1970 SCR (2) 566
ACT:
U.P. Encumbered Estates Act (25 of 1934), ss. 14, 19 and
24, and U.P. Zamindari Abolition and Land Reforms Act (1 of
1951)--Decree under Encumbered Estates Act-if could be
executed against bhumidhari rights granted under the
Abolition Act--Trees of debtor--When could be proceeded
against in execution.
HEADNOTE:
The predecessors-in-interest of the appellants were
landlords owning an estate including agricultural land,
trees, groves etc., in U.P., and were heavily indebted to
the respondents. Most of the debts were secured. On the
application of the landlords proceedings were taken under
the U.P. Encumbered Estates Act, 1934, and a decree was
passed under s. 14(7) of the Act in favour of the
respondents in 1938. The nature and extent of property
liable to attachment and sale, as required by s. 19(2)(b) of
the Act, were furnished to the executing authority. By
virtue of a notification under the U.P. Zamindari Abolition
and Land Reforms Act. 1950, the estate vested in the State,
and new rights, namely, bhumidhari rights in the lands in
the estate, were created in 1952 in favour of the appellants
who were the successors-in-interest of the landlords. In
1959. the respondents applied under s. 24 of the Encumbered
Estates Act to recover the amount decreed to them, by
proceeding against the bhumidhari rights and trees belonging
to the appellants.
On the question whether: (1 ) the bhumidhari rights, and
(2) the trees, could be proceeded against,
HELD: (1) Though the respondents were mortgagees their
rights as such were extinguished under the Encumbered
Estates Act and the decree in theft favour under the Act was
only a simple money decree which was not executable except
under the provisions of the Act. Under s. 24 execution can
be levied from any property or rights, other than
proprietary rights in land, which are reported under s. 19
as liable to be attached and sold. On the passing of the
U.P. Abolition Act the proprietary rights of the landlords
in the land vested in the State and thereafter, the
appellants had no proprietary rights left in them. The
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bhumidhari rights being new rights created for the first
time in favour of the appellants under the Abolition Act,
are not proprietary rights. In the present case, the
requirements of ss. 19 and 24 have been complied with, even
though the bhumidhari rights were not mentioned as being
liable to attachment and sale because., (i) under s.
19(2)(b) the requirement is only to report the nature and
extent of the property liable to attachment and sale and not
the interests or rights of the debtor in the property; and
(ii) the decree under the Encumbered Estates Act was passed
in 1938 while the bhumidhari rights were created only in
1952, and hence, could not be specifically mentioned in the
decree. When the Encumbered Estates Act permits the
respondents to levy execution against the property of the
debtor other than the proprietary rights in land, and when
there is no prohibition in the Abolition Act against
execution of a, decree obtained under the Encumbered Estates
Act, against the bhumidhari rights, the respondents were
entitled to proceed against such rights. [575 A-B; 577 B-E;
G; 578 A.F]
567
Rang Sheo Am,bar Singh v. Allahabad ’Bank Ltd. [1962] 2
S.C.R. 441, followed.
(2) Unders; 6(a) of the Abolition Act and s. 3.(6)of the
U.P. Tenancy-Act, 1939.’,the right title and interest of
intermediaries in trees and grove-land, but not in trees
constituting a grove, cease, and vest in the State. Since
the trees constituting a grove have not vested in the State
,and could not have formed the subject of creation of
bhumidhari rights they are the debtor’s property and, are
liable to be proceeded against in execution under s. 24 of
the Encumbered Estates Act. Even if the appellants got
bhumidhari rights over the trees constituting the grove,
they could be proceeded against; because, bhumidhari rights
could be proceeded against in execution. [580 B, C-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION:CiVil Appeal No. 1016 of 1966.
Appeal by Special ’leave from the order dated October
15, 1965 of the Board of Revenue, U.P. in Revision No. 2--E
of 1964 Saharanpur.
J.P. Goyal’ and S.M. Hanif, for the appellants.
S.V. Gupte, G.D. Gupta and B. P. Maheshwari, for
respondents Nos. 1 to. 3.
The Judgment of the Court was. delivered by
Vaidialingam, J. The question that ’arises for
consideration in this appeal, by special leave:, is as to
whether the bhumidhari rights and trees belonging to the
appellants can be proceeded against and sold for realisation
of the: debts due to the respondents under the U.P.
Encumbered Estates Act, 1934 (Act XXV of 1934) as amended
(hereinafter referred to as the Encumbered Estates Act).
The contention of the appellants iS that they cannot be
sold, whereas, according to the respondents, they can be
sold.
The predecessors-in-interest of the appellants were
Landlords owning immovable properties, including
agricultural land, trees, groves and well, situate in the
various villages in the District of Saharanpur. They were
very heavily indebted, the debts being both secured and
unsecured, payable by them to the creditors. The
respondents were among the secured creditors to whom large
amounts were due. On or about March 26, 1936 the appellants
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predecessors-in-interest filed an application under s. 4
of the Encumbered Estates Act to the Collector for
determination of their debts. As required by s. 6 of the
said Act, the Collector forwarded this application to the
Special Judge, Saharanpur, appointed under s.3 of the said
Act and the said application was registered as Suit No.23 of
1936. After complying with the other formalities under the
Encumbered Estates Act, the Special Judge, on December .23,
1936 passed a decree under s.14(7). of the Encumbered
Estates Act. The said decree was amended on
568
January 23, 1938. The Special Judge granted a decree in
favour of respondents 1’ to 3 for two sums= of Rs.
36,000/.- and Rs. 25,000/-on loans secured over
properties mentioned in Schedules A, B and C of the
decree. They were also granted a decree for Rs. 9,000/-
which was the decree debt for the payment of which the
mother of the ’daughter had stood surety. Over and above
these amounts, the respondents were given a decree for Rs.
3,500/- for an unsecured debt.
The liquidation proceedings which were started under
the Encumbered Estates Act and were pending before the
Collector were stayed till 1954 in view of the contemplated
legislation for abolition of zamindari, the Uttar Pradesh
Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1
of 1951) (hereinafter referred to as the Abolition Act), and
the appellant’s estate vested on July 1, 19’52 in the State
by virtue of the notification issued under s. 4( 1 ) of that
Act. The liquidation proceedings pending before the
Collector under the Encumbered Estates Act were reopened in
the year 1955. On May 15, 1959 the respondents made an
application to the ASsistant Collector of Saharanpur (to
whom the powers of the Collector, for the purposes of s. 24
of the Encumbered Estates Act had been delegated) to recover
the amounts decreed to them by the Special Judge by
proceeding against the bhumidhari rights, and trees
belonging to the appellants and to auction the same under
s. 24 of the Encumbered Estates Act. The appellants
filed objections, briefly, to the following effect. The
decree holder iS not entitled to proceed against the
bhumidhari rights or the trees in their possession. The
decree-holder’s debts are secured debts and they are
entitled only to three-fourths of the Zamindari Abolition
and Rehabilitation Grants and that they are not entitled to
’get anything more under the decree.’ The list forwarded by
the Special Judge does not refer to any of their rights now
sought to be attached and therefore no execution can be
levied against such properties. Bhumidhari rights accrued
only after the ’abolition of the zamindari and, as such,
they cannot be proceeded against for realisation of the
decreed amounts. The Assistant Collector, by his order
dated February 21, 1961 upheld the objections of the
appellantsdebtors and’ dismissed the ’application of the
decree-holders-res- pondents for sale of bhumidhari and
other rights in the properties mentioned by them. The basis.
on which the Assistant Collector declined to allow execution
to proceed was that bhumidhari rights represent the
proprietary rights which the zamindars, on the abolition of
the estate, were allowed to retain, by the Abolition Act. In
substance, those rights were the original proprietary
rights, though a new name of bhumidhari rights was given to
them.
The respondents challenged this order of the Assistant
Collector in appeal, under s. 45(3) of the Encumbered
Estates Act,
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569
before the Commissioner, Meerut Division, who by his order
dated March 24, 1965’ reversed the order of the ASSistant
Collector and held that the trees and bhumindhari rights of
the appellants could be sold in execution of the decree.
The view of the Commissioner is that such rights are rights
other than proprietary rights. The prOhibitiOn contained
in the Encumbered Estates (Act is only ’regarding the sale
of proprietary rights and bhumidhari fights not being
proprietary rights could be proceeded with in execution.’
The appellants filed a revision, under s. 46(2) of the
Encumberedestates Act, before the Board of Revenue. The
two contentions, that were raised by the appellants, before
the Board of Revenue were: (i) bhumidhari rights are
proprietary rights in land and as such, no execution can
levy against such rights; (ii) the bhumidhari rights sought
to be proceeded against have not been mentioned in the list
of properties sent by the Special Judge to. the Collector
under s. 19 of the Encumbered Estates Act and therefore
they cannot be sold in liquidation proceedings under Chapter
V of the Encumbered Estates Act. Both these contentions were
rejected by the Board of Revenue who, by their order dated
October 15, 1965 confirmed the order of the Commissioner and
dismissed the appellant’s revision petition. The Board of
Revenue has held that bhumidhari rights are not proprietary
rights and so long as there is no prohibition under the
Abolition Act to proceed against them, the decree-holder was
entitled to attach and sell those rights. The Board further
held that the properties have been mentioned in the list
sent by the Special Judge and the nature of the rights,
viz., bhumidhari rights, could not have been mentioned on
the date when the list was sent because such rights were
obtained by the appellants long thereafter. It is
against this order of the Board that the appellants have
come up to this Court in appeal.
Mr. Goyal, learned counsel for the appellants, urged
that the decree obtained by the respondents. under the
Encumbered Estates Act, as provided under s. 14(8) thereof,
’shall not be executable within U.P. except under the
provisions of this Act’ Section 19 of the Encumbered Estates
Act provides for the Special Judge informing the
Collector of the nature and extent of the property mentioned
in the notice under s. 11, which he has found to be liable
for attachment and sale in satisfaction of the debts of the
applicant. Section 24 provides for the Collector
realising the value of such of the debtor’s property other
than the proprietary rights in land as shall have been
reported by the Special Judge, under the provisions. of
sub-s. (2)’of s. 19 to be liable to attachment or sale.
Having due regard to these provisions, the counsel urged
that the bhumidhari rights granted to the
570
appellants under the Abolition Act, having not been
admittedly reported by the Special Judge, cannot be
proceeded against in execution under the Encumbered Estates
Act. The counsel further urged that bhumidhari rights are
special and new rights given under the Abolition Act to
the former proprietors of the estate: which vested in the
State. Those rights cannot be proceeded against for
realisation of the debts due to the respondents. Counsel
referred us to the material provisions of the Encumbered
Estates Act and the Abolition Act in support of the above
contentions. Mr. Goyal also urged that the rights of the
respondents, if any, are only to proceed against the
compensation awarded under the Abolition Act. In support
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of his contention that the bhumidhari rights are new and
special rights, Mr. Goyal referred us to two decisions of
this Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd.,
Allahabad(1) and Krishna Prasad v. Guari Kumari Devi(2).
On the other hand, Mr. Gupte, learned counsel for the
respondents, urged that the respondents are executing the
decree strictly in accordance with the provisions of the
Encumbered Estates Act. In this connection, counsel pointed
out that whatever rights of the respondents, as mortgagees,
originally might "-have been, the decree passed under the
Encumbered Estates Act, under s. 14(7)(b)(i), in favour of
the respondents is only a simple: money decree. Therefore
the provisions dealing with the rights of a mortgagee in
respect of an estate under the Zamindari Abolition Act dO
not have any material bearing. He also referred to s. 18 of
the Encumbered .Estates Act to show that the effect of a
decree of a Special Judge under s. 14(7) is to extinguish
the ’previously existing. rights of mortgage or security.
The properties which are: sought to be proceeded against are
clearly referred to by the Special Judge in the decree sent
to the Collector under s. 19 of the Encumbered Estates Act.
Under cl. (b) of s. 19 (2) it was only necessary to state
the nature and extent of the property and the Special Judge
has informed the Collector of those particulars. SeCtion 24
gives power to the Collector to realise the value of such.
of the debtors’ property as has been reported by the Special
Judge under sub-s. (2) of s. 19. It is against such
property that the respondents are proceeding against for
realisation of their dues. Mr. Gupte further urged that the
fact that at the time when execution is levied, the right of
the appellants is the bhumidhari rights in those identical
properties is not of any consequence. The decisions. relied
on by Mr. Goyal, the counsel points out, had no occasion
to deal with the rights of a creditor under the Encumbered
Estates Act. He further pointed out that there is nO
provision in the Abolition Act. barring attachment and sale
of bhumidhari rights. The counsel
(1) [1962] 2S.C.R. 441. (2) [1962] Supp. 3 S.C.R.
571
finally urged that the main purpose of the Encumbered
Estates Act was to help to preserve the proprietary rights
of land-owners in U.P. and at the same time to evolve a
machinery to liquidate their rights. It could not be the
intention of the Legislature on the one hand tO preserve
property rights in land even though it is encumbered with
heavy debts and on the other to provide the creditors no
machinery for realisation of their dues.
It will be seen from the rival contentions set out above
that the main question that arises for consideration is as
to whether the bhumidhari rights of the appellants obtained
by them under the Abolition Act can be proceeded with for
realisation of the decree obtained by the respondents under
the provisions of the Encumbered Estates Act. This takes us
to a consideration of the material provisions of the
Encumbered Estates Act and the Abolition Act.
The object of the Encumbered Estates Act is to provide
for relief of encumbered estates in U.P. Section 2 defines
among other expressions, ’debt’, ’land’ and ’landlord’
Section 3 deals with the appointment of a Special Judge.
Section 4 provides for the landlord who is subject to or
whose immovable property or any part thereof is encumbered
with private debts,. for making an application within the
time mentioned therein to the concerned Collector requesting
that the provisions of the Encumbered Estates Act be applied
to him. The landlord has to state in the application the
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amount of private debts as also his public debts, both
decreed and undecreed. Section 6 deals with the
transmission to the Special Judge of the application
received by the Collector under s. 4. The Collector has
also to inform the Special Judge of any public debts
outstanding against the landlord. Section 7 deals with
the consequence of acceptance of an application by the
Collector. In brief, all pending proceedings excepting
proceedings by way of appeal or revision stand stayed and
all attachments and other execution processes are declared
null and void. No fresh suit or other proceeding excepting
an appeal or revision against a decree or order can be
instituted in any civil or revenue Court. Section 8 deals
with the Special Judge who has received an application
under s. 6 calling upon the applicant-landlord to submit a
written statement containing full particulars regarding the
public or private debts to which the landlord is subject or
his immovable property is encumbered, the nature and extent
of the landlord’s proprietary rights in land, the nature and
extent of his property liable to attachment and sale under
s. 60, C.P.C., and the names and addresses of his creditors.
Under s. 9, the Special Judge has to publish in the Gazette
a notice calling upon all persons having claims in respect
of private debts, both decreed and undecreed, against the
landlord or his property. Section 10 provides that every
claim made under
Sup.CI/70--6
572
s. 9 should contain full particulars of the claim and also
to the extent possible the nature and extent of the
landlord’s propfietory rights in land as also the nature and
extent of the landlord’s property other than proprietary
rights. Section 11 requires the Special Judge to publish a
notice specifying the property mentioned by the landlord
under s. 8 and by a claimant under s. 10. It also provides
for any person having any claim to the property mentioned in
such notice of making an application to the Special Judge
specifying his claim and for investigation by the Special
Judge whether the property specified in the claim or any
part thereof is liable to attachment, sale or mortgage in
satisfaction of the applicant. Section 14 empowers the
Special Judge, after giving the necessary notices in that
behalf, to examine each claim and determine the amount, if
any, due from the landlord to the claimant on the date of
the application under s. 4. Section 14 (7) (b) provides for
the Special Judge, on finding that an amount is due to the
claimant, to pass a simple money decree. Sub-s. (8) states
that every decree passed under sub-s. (7) shall be deemed
to be a decree of a Court of competent jurisdiction but
shall not be executable within U.P. except under the
provisions of the Encumbered Estates Act. Section 18,
dealing with the effect of the finding of the Special Judge
states that the existing relationship between the debt and
the property which is charged or mortgaged for that debt are
extinguished and the decree that is given by the Special
Judge is stated to substitute for the previous rights a
right to recover the amount of the decree in the manner and
to the extent thereafter provided. It has already been
noted that under s. 14 it is only a simple money decree that
is passed by the Special Judge. Section 19 provides for the
transmission of the decrees passed by the Special Judge to
the Collector for execution in accordance with the
provisions of Chapter V. The Special Judge is also to inform
the Collector of the nature and extent of the property
mentioned in the notice under s. 11 which he has found to be
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liable to attachment or sale in execution of the debts of
the applicant. In the case before us there is no con-troves
that the Special Judge has complied with this provision.
Chapter V deals with execution of decrees and
liquidation of debts and s. 24 provides for the Collector to
whom the decree has been transmitted by the Special Judge
under s. 19 to proceed to realise the value of such of the
debtor’s property other than proprietary rights in land as
shall have been reported by the Special Judge under the
provisions of s. 19(2) to be liable to attachment and sale.
In this connection, it may be stated that the question that
will arise for consideration is whether bhumidhari rights
are ’the debtor’s property other than proprietary rights
in land’. If they are not proprietary rights in land then
573
under this section they are liable to be sold under auction
because the nature and extent of the property has been
mentioned by the Special Judge in his report under s. 19(2)
to be liable to attachment and sale.
From the provisions referred to above, the Scheme of the
Encumbered Estates Act appears to be as follows. Any
landlord who is encumbered with private debts can make an
application to the prescribed authority for applying the
provisions of that Act. The Special Judge, after making the
necessary publication, calls for claimants against the
landlord and also ascertains the property of the debtor.
He then examines the claimants and determines the amounts
of debt due and passes a decree under s. 7 of the Encumbered
Estates Act if amounts are found to be due; but even though
the amount may have been charged on the property, the
Special Judge passes only a simple money decree. Under s.
14(8) the decree so passed is deemed to be a decree of a
Civil Court of competent jurisdiction and it shall not be
executable except under the provisions of the Encumbered
Estates Act. Once the matter goes within the jurisdiction
of the Special Judge the existing relations between the debt
and the property which is charged or mortgaged for that
debt are extinguished and the decree is only a simple money
decree and not a mortgage decree. The mode of execution is
then described in s. 19 under which the Special Judge
transmits the decrees for execution to the Collector
informing the latter among other matters of the nature and
extent of the property which he has found to be liable to
attachment or sale in satisfaction of the debts. The
Collector, under s. 24, has to realise the value of the
debtor’s property other than proprietary rights in land.
In the case before us we have already referred to the
various stages leading up to the respondents obtaining a
decree and the decree being transmitted for execution, as
well as the final order of the Board of Revenue, accepting
the right of the respondents to levy execution against the
bhumidhari rights in the land.
Under the Abolition Act, there is no controversy, that
the estate of the appellants vested in the State on July 1,
1952 by virtue of the notification issued under s. 4.
Section 3 defines the various expressions. Section 4 deals
with vesting of estates in the State on the issue of a
notification thereunder. Section 6 deals with the various
consequences of the vesting of an estate in the State.
Clause (h) of s. 6 provides that no claim or liability
enforceable or incurred before the date of vesting by or
against such intermediary for any money, which is charged
on or is secured by a mortgage of such estate or part
thereof, shall, except as provided in s. 73 of the Transfer
of Property, 1882, be enforceable against the interests of
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such third person. Section
574
18 deals with settlement of certain items with
intermediaries of cultivators as bhumidhars. It is the
claim of the appellants that under this section they have
been given rights of a bhumidhar in respect of the
properties which are now sought to be sold by the
respondents in execution. Section 199 provides that no
bhumidhar shall be liable to ejectment.
We have not referred very elaborately to the provisions
of the Abolition Act or its scheme, because these have been
considered in the previous judgment of this Court in Rana
Sheo Ambar Singh’s Case(1). It is enough to state that no
provision in the Abolition Act prohibiting the attachment
and sale of the bhumidhari rights have been brought to our
notice by Mr. Goyal.
In Rana Sheo Ambar Singh’s Case(1) the facts were
briefly as follows. The proprietor of an estate had
executed a simple mortgage of his proprietary interest in
the estate consisting of 67 villages to the Allahabad Bank
Ltd. The Bank obtained a decree and while execution
proceedings were pending, the zamindan Abolition Act was
passed by virtue of which the estate vested in the State
and, consequently, the decree-holder Bank could no longer
sell the rights of the proprietor in the 67 villageS,
mortgaged to it. The Bank made an application to the
executing Court to realise the amounts due to it by
proceeding against the rights of the judgment-debtor as
remained in him after the coming into force of the Abolition
Act. One of the rights of the judgment-debtor which were
sought to be proceeded against was the bhumidhari rights
created under s. 18 of the Abolition Act. The case of the
Bank was that the judgment-debtor’s proprietary rights in
grove land and sir and khudkast lands had been continued
under s. 18 of the Abolition Act and that, in any event,
they constituted substituted security in place of the
original proprietary rights mortgaged. The judgment-debtor
raised objections to execution being taken against his
bhumidhari rights. The High Court upheld the view of the
executing Court that execution could proceed against the
bhumidhari rights. This Court reversed the judgment of the
High Court and held that the proprietary rights in sir,
khudkast lands and groves vested in the State on the issue
of a notification under s. 4. This conclusion was reached
after rejecting the contention of the decree-holder that the
proprietary rights in sir, khudkast and grove lands did not
vest in the State and that those rights were continued in
the landlord under s. 18. This Court further held that the
Legislature was creating a new right under s. 18 and the old
proprietary right in sir, khudkast and intermediaries’ grove
land had already vested in the State under s. 6, and further
observed, at p. 448:
"We are of opinion that the
proprietary rights in sir and khudkast
land and in grove land have vested (1)
[1962] 2 S.G.R. 441
575
in the State and what is conferred on the
intermediary by s.18 is a new right altogether
which he never had and which could not
therefore have been mortgaged in 1914."
In the later part of the judgment it was further held that
the bhumidhari rights created under s. 18 are not
compensation and that they are special rights conferred on
the intermediary by virtue of his cultivatory possession of
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lands comprised therein and that the decree-holder cannot
enforce his rights under the mortgage by sale of the
bhumidhari rights created in favour of the landlords under
s. 18, so far as sir, grove land and khudkast lands are
concerned and that he can only follow the compensation money
under s. 6(h); The court finally rejected the contention
that bhumidhari rights can be followed as substituted
security.
It will be seen that in the decision cited above this
Court was considering the rights of a mortgagee as such to
proceed against the bhumidhari rights and it was in that
connection, in view of the specific provision under s. 6(h)
of the Act and the nature of the new rights created under s.
18, that this Court held that the mortgagee was not entitled
to levy execution against the bhumidhari rights. The said
decision also lays down that the bhumidhari rights granted
under s.18 were new rights created by the legislature and
the old proprietary fight in the land had already vested
under s. 6 in the State. It is also clear from the said
decision that bhumidhari rights created under s.18 are not
compensation and that they are special rights conferred on
the intermediary by virtue of his cultivatory possession of
the lands comprised therein and bhumidhari rights cannot
also be considered as substituted security. The point to be
noted, and which has been emphasised in that decision, is
that all proprietary rights in the land had vested in the
State and that no part of the proprietary rights remained in
the landlord after the vesting of the estate in the State.
It is further to be seen from that decision that the
bhumidhari rights are no part of proprietary rights which
the landlord had, prior to vesting.
In Krishna Prasad’s Case(1) the question that arose
for consideration was whether under the Bihar Land Reforms
Act, 1950 (hereinafter called the Bihar Act) it was open to
a mortgagee-decree holder of an estate which’ had vested in
the State to levy execution personally against the mortgagor
by attachment and sale of other properties of the mortgagor.
It was held by this Court, after a review of the
provisions of the Bihar Act which were more or less
substantially the same as those of the Abolition Act, that
the compensation payable on acquisition of
(1) [1962] Supp. 3 S.C.R. 562.
576
a mortgaged estate had been made a kind of substituted
security against which the mortgage claim could be enforced
under the Bihar Act. It was further held that execution, by
way of a personal decree, could only be done eventually if
the realisation from the compensation amount was found
insufficient to satisfy the decree.
We may also refer to the decision of this Court in
Shivashankar Prasad Sah v. Baikunth Nath Singh(1). That
decision had, again, to deal with the rights of a mortgagee-
decree holder to proceed against the Bakasht land of the
judgment debtors and that right had to be decided under the
Bihar Act. Section 6 of tiffs Act, corresponds more or less
to s. 18 of the Abolition Act. In dealing with the scheme of
the Bihar Act and in particular, the effect of s. 6 this
Court observed:
"Reading ss. 3, 4 and 6 together, it
follows that all Estates notified under s.3
vest in the State free of all encumbrances.
The quondum proprietors and tenureholders of
those Estates lose all interests in those
Estates. As proprietors they retain no
interest in respect of them whatsoever. But
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in respect of the lands enumerated in s. 6 the
State settled on them the rights of raiyats.
Though in fact the vesting of the Estates and
the deemed settlement of raiyats in respect of
certain classes of lands included in the
Estates took place simultaneously, in law the
two must be treated as different
transactions; first there was a vesting of
the Estates in the State absolutely, and free
of all encumbranches. Then followed the
deemed settlement by the State of raiyat’s
rights on the quondum proprietors. Therefore
in law it would not be correct to say that
what vested in the State are only those
interests not coming within s. 6."
Finally this Court held that the mortgagee-decree holder’s
only remedy was to establish their claim under the Bihar Act
and get compensation and that they cannot levy execution
against the Bakasht land.
In our opinion, none of the decisions referred to
above, assists the appellants. Those decisions were
directly concerned with the rights of the mortgagees as such
to levy execution either as against the bhumidhari rights.
or personally against the mortgagor or against his other
properties. The right to levy execution was claimed by the
decree-holders as mortgagees after the estate mortgaged to
them had vested in the State, under the relevant Acts.
Under those circumstances, this Court held that the
(1) Civil Appeal No. 368 of 1966 decided on 7. 3. 1969.
577
mortgagees’ remedy was only to proceed against the
compensation money as provided under the material
provisions of the statute governing the same. None of those
decisions had occasion to consider the question that now
arises for consideration before us, viz., the rights of a
decree-holder under the Encumbered Estates Act.
We have already referred to the nature of the decree
that has been obtained by the respondents. Though at an
earlier stage they were mortgagees, it was a simple money
decree that was granted to them under s. 14(7) of the
Encumbered Estates Act and their rights as against the
mortgage securities had been extinguished under s.18 of the
Encumbered Estates Act. In this view, s.6(h) of the
Abolition Act, relied on by Mr. Goyal, does not assist him.
It is no doubt true that the decree obtained by the
respondents shall not be executable except under the
provisions of the Encumbered Estates Act. The nature and
the extent of the property liable to attachment and sale in
satisfaction of the debts due to the respondent, as required
under s.19(2)(b) of the Encumbered Estates Act have all been
furnished in the decree granted under s.14(7) by the Special
Judge and transmitted to the Collector under s.19.
Therefore, when the respondents approached the Assistant
Collector on May 15, 1959 with an application to recover
their debts from the bhumidhari rights of the appellants,
they were only in the position of holders of simple money
decrees. If so, execution can be levied normally from any
property or rights which are liable to be attached or sold
unless there is any prohibition imposed by the statute.
Section 18, after extinguishing the rights in the property
that may have been held under a mortgage or security,
specifically provides that’ where any decree is given by the
Special Judge they are in substitution of the original
rights of a mortgagee or security holder and the decree-
holder has got the right to recover the amount of the decree
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in the manner and to the extent prescribed. Section 24
gives a right to the decree-holders to recover their dues
from the property of a debtor other than proprietary rights
in land. Therefore the question is whether the bhumidhari
rights conferred on the appellants under s. 18 of the
Abolition Act are property other than proprietary rights in
land. If they are rights other than proprietary rights,
they can be proceeded against under s. 24 read with s. 18 of
the Encumbered Estates Act.
The decisions of this Court, referred to above,
clearly lay down that the proprietary rights of the
landlord in the land vest in the State on the passing of the
relevant Abolition Acts. It has also been emphasised in
Rana Sheo Ambar Singh’s Case(1) and as is also clear from s.
6 of the Abolition Act--that all rights,
(1) [1962] 2 S.C.R. 441.
578
title and interest of all the intermediaries in every
estate shall cease and be vested in the State, on the issue
of a notification under s. 4 of the Abolition Act. If so,
it follows that after the estate vested in the State, the
appellants had no proprietary rights left in them; and the
bhumidhari rights, as held by this Court, being new rights
created for the first time in favour of the appellants under
s. 18 of the Abolition Act and not proprietary rights, the
respondents are entitled to proceed against those rights
under s. 24 of the Encumbered Estates Act.
Mr. Goyal next urged that the bhumidhari rights have not
been mentioned in the decree granted under s. 14(7) nor have
they been reported by the Special Judge under s. 19(2) as
being liable to attachment and sale as is necessary under s.
24. True it is that these rights, as such, have not been
mentioned. But a perusal of s. 19(2)(b) clearly shows that
it was not necessary that the interest or rights of the
debtor should be mentioned in the decree, because the
requirement is only regarding the nature and extent of the
property and that has been mentioned in the decree granted
in favour of the respondents by the Special Judge under s.
14(7), and it has been reported to the Collector under s.
19(2). If so, the requirements of ss. 19 and 24 have been
complied with. Hence it follows that this contention of
Mr. Goyal cannot be accepted. There is also another reason
for rejecting the said contention. Bhumidhari rights have
been created in favour of the appellants only on July 1,
1952, the date of vesting, on the issue of a notification
under s. 4 of the Abolition Act, whereas the amended decree
in favour of the respondents has been passed under s.14(7)
as early as January 23, 1938. When the Encumbered Estates
Act permits the respondents to levy execution against the
property of the debtor other than proprietary rights in land
and when there is no prohibition in the Abolition Act
against execution of decrees obtained under the Encumbered
Estates Act against such rights, it follows that the decree-
holder respondents are entitled to proceed against the
bhumidhari rights and therefore the appellate order of the
Additional Commissioner, dated March 24, 1965 and the
revisional order of the Board of Revenue, dated October 15,
1965 upholding the right of the respondents in this regard,
are correct.
The further question that arises is whether the
respondents are entitled to levy execution against the trees
in the possession of the appellants in execution of their
decree. No doubt, the general objection that was taken by
the appellants before the Assistant Collector was that the
groves formed part of the sir property and . therefore the
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question of their being auctioned does not arise and that
the groves do not form part of the list mentioned in the
decree passed by the Special Judge. On the other hand,
according to.
579
the respondents, the trees never vested in the State under
the Abolition Act and, as the appellants continued to be the
owners of the same, execution can be levied against the
trees. The contention of the appellants that the trees have
not been mentioned in the list need not detain us because
the amended decree passed by the Special Judge clearly
refers to trees standing on the lands described in the
Schedules. Then the question is whether the trees belong to
the respondents.
Section 3(26) of the Abolition Act states that the words
and expressions, mentioned therein and which have not been
defined in the Act but used in the U.P. Tenancy Act, 1939
shall have the meaning assigned to them in the latter Act.
Two, among the various expressions referred to in s. 3(26)
are ’grove’ and ’grove holder’. Therefore we have to look
into the U.P. Tenancy Act to find out the meaning of the
expression ’grove’ Section 3(6) of the U.P. Tenancy Act,
1939 (U.P. Act XVII of 1939) defines the expression ’grove-
land’ as follows:
"3(6). ’grove-land’ means any specific
piece of land in a mahal or mahals having
trees planted thereon in such numbers that
they preclude or when full grown will
preclude, the land or any considerable
portion thereof from being used primarily for
any other purpose and the trees on such land
constitute a grove."
From the above, it will be seen that ’grove’ is something
different’ from ’grove-land’ because the definition says
that the trees on such land, viz., ’grove-land’, constitute
a ’grove’. Section 6 of the Abolition Act, dealing with
the consequences of the vesting of an estate in the State,
among other things, states in cl. (a):
"6(a) all rights, title and interest of
all the intermediaries --
(i) in every estate in such area including
land (cultivable or barren), grove-land,
forests whether within or outside village
boundaries, trees (other than trees in village
abadi, holding or grove), fisheries, tanks,
ponds, water-channels, ferries, pathways,
abadi, sites, hats, bazars and melas (other
than hats, bazars and melas held upon land
to which clauses (a) to (c) of sub-section (1)
of Section 18 apply), and
(ii) in all sub-soil in such estates including
rights, if any, in 1 mines and minerals,
whether being worked or not,
shall cease and be vested in the State of Uttar
Pradesh free from all encumbrances."
580
Clause (a), referred to above, deals with grove lands
and trees, separately. The grove-land referred to above,
will be the grove-land defined in s. 3(6) of the U.P.
Tenancy Act. Clause (a) also refers to the right, title and
interest of intermediaries in trees ceasing and vesting in
the State. From among the trees, such of the trees as
constitute a grove have been excluded from the operation of
cl. (a) of s. 6. Therefore, the excluded category of trees
forming the grove cannot be considered to have vested in the
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State on the abolition of the estates. Section 18, which
creates bhumidhari rights deals, among other items, with
"intermediary’s grove". The expression "intermediary’s
grove" is defined in s. 3 (13) of the Abolition Act as
grove-land held or occupied by an intermediary as such.
We do not find any material on record to draw an inference
that the appellant raised any contention that the trees
constituted an ’intermediary’s grove’.
From what is stated above, it will be seen that the
trees constituting the grove, have not vested in the State
and therefore they could not have formed the subject of
creation of bhumidhari rights under s. 18. Therefore the
trees constituting the grove, being the debtor’s property,
are liable to be proceeded with in execution under s. 24 of
the Encumbered Estates Act. Even if it is to be held that
the appellants have got bhumidhari rights over the trees
constituting the grove, as already held by us, these rights
can be proceeded with under s. 24 of the Encumbered Estates
Act. Therefore, from either point of view, the trees
constituting the grove are liable to be proceeded against,
for realisation of the decree by the respondents.
The result is the appeal fails, and is dismissed with costs.
V.P.S.
Appeal dismissed.
581