NDLI: Mahabir Gope and Others Vs. Harbans Narain Singh and Others

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Bihar Tenancy Act 1937
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Transfer of Property Act, 1882 (4 of 1882) Bihar Tenancy Act (0 of 1937)
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Dismissed
Headnote	Bihar Tenancy Act, 1937, ss. 5(2), 20, 21-Zuripeshgi lease-- Lease .by mortgagee for a term of 3 years-Lease continuing in possession for over 30 years-Whether acquires occupancy rights-- Construction of lease-Mortgagee's power to lease-Limitations-- Transfer of Property Act, (IV of 1882), s. 76 (a) and (e). As a general rule a person cannot transfer or otherwise confer a better title on another than he himself has and a mortgagee cannot therefore create an interest in mortgaged property which will enure beyond the termination of his interest as mortgagee. Further, a mortgagee cannot during the subsistence of the mortgage act in a manner detrimental to the mortgagor's interest;, such as by giving a lease which may enable the tenant to acquire permanent occupancy rights in the land, thereby defeating the mortgagor's right to khas possession. A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is an exception to the general rule, but to fall within this exception the settlement of the tenant by the mortgagee must have been a bona fide one. The exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication. Where a zuripeshgi ijara deed contained the following clause ; "It is desired that the ijaradars should enter into possession and occupation of the share let out in ijara (being the klzudkasht land under his own cultivation), cultivate them, pay 2 as. as reserved rent year after year to us, the executants, and appropriate the produce thereof year after year on account of his having the ijara interest" and the kabuliat executed by the tenant to whom the lands were leased by the mortgage for a period of 3 years referred to the ijara deed and contained an express provision that he (the tenant) would give up possession of the tika land on the expiry of the lease without urging any claim on the score that the lands were his kasht lands : Held, confirming the decision of the High Court, that the settlement was not a bona fide one and the successors of the tenant (the defendants) did not acquire permanent rights of occupancy in the demised lands under the Bihar Tenancy Act even though the lands had been in the occupation of the tenant and his successors for over 30 years after the expiry of the lease.
Judge	Hon'ble Mr. Justice N. Chandrasekhara Aiyar
Neutral Citation	1952 INSC 22
Petitioner	Mahabir Gope And Others
Respondent	Harbans Narain Singh And Others
SCR	[1952] 1 S.C.R. 775
Judgement Date	1952-04-14
Case Number	143

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