1885 (3) TMI 1

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....opinion, the proprietor of the property during that time, inasmuch as I understand the proprietor of a thing to be the person entitled to the exclusive possession of it at the time. If it be true that the transaction has constituted the mortgagee the proprietor of the property, though only for the time being, it must follow that the mortgagor has parted with his proprietary rights as he has ceased to be proprietor. The difficulty in the case really arises from the decision of a Division Bench of this Court in the case of Bhagwan Singh v. Murli Singh I.L.R. 1 All. 459. Speaking for myself, I can only say that I think that decision is wrong, and that I decline to follow it. In my opinion, the meaning of the Legislature is that when a Zamindar ceases to be entitled to occupy the sir-land as proprietor, he shall have the right to occupy it as an ex-proprietary tenant under Section 5 of the Rent Act. It follows that I answer the question in the affirmative. Douglas Straight, J. 2. I am of the same opinion. The mortgage transaction between the parties to the suit, out of which the reference has arisen, transferred the legal estate in the zamindari to the mortgagee, and entitled him....

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....f component rights, such as the right of actual possession, the right of enjoying the usufruct of land, the power of sale, and so on. In my judgment in the case of Gopal Pandey v. Pursotam Das I.L.R. All. 121. I explained what full ownership means and what its incidents are, and also what the exact nature of occupancy-right is in these provinces. I there said that a person in full ownership can alienate any one or more of its component elements. The question before the Court in that case related to simple mortgage or hypothecation, but my argument applies also to the case now before us, because I said, adopting another passage from Austin, that the full ownership being composed of these rights "indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration," any alienation of these rights would be a mortgage, so long as the object of the alienation was security for the payment of a debt in money. I further said, quoting from another jurist, that any "one or more of the subordinate elements of ownership, such as a right of possession or user, may be granted out while the residuary right of ownership, called by the Romans nuda proprieties, remai....

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....Chief Justice and my brother Straight have implied, a usufructuary mortgage is a "parting with" some of the incidents of ownership, because the most important elements of ownership are the right of possession and of the enjoyment of the usufruct, though temporary and for a specific object. These rights are, in the case of usufructuary mortgage, transferred from the mortgagor to the mortgagee, and though such a transfer does not amount to a total alienation of proprietorship, it does fall within the expression "part with" in Section 7 of the Rent Act. I do not hold this opinion on theoretical grounds only, but also on grounds of public policy as apparent from the statute itself. I mean by this that the right of occupancy in sir-land has been obviously intended by the Legislature as a protection to the owners of zamindari shares in villages in India against their own imprudence. Now the case of Bhaghwan Singh v. Murli Singh I.L.R. All 459 goes directly against this view. In regard to that case, I will not say anything in the nature of an argument against the ratio decidendi upon which the judgment was based, beyond the observation that the reasons upon which my view is founded do not....

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.... the end of sixty years when the right of proprietorship would cease by prescription, and the original owner would be prevented from keeping the occupancy-right, because during the continuance of the mortgage when the mortgagee would remain in possession, the sir-land would either be fallow (which is not likely), or the right of actual possession and cultivation thereof having once been conveyed to the mortgagee, he might let the land to tenants, and thus create rights which would take it out of the category of sir-land as defined in Section 3, Clause (4) of the Rent Act (XII of 1881). Such a result would, in my opinion, defeat the object of the statutory provision, and for the reasons my answer to the reference must be in the affirmative. Oldfield, J. 4. The reply to this reference depends on the meaning to be put on the words "lose or part with his proprietary rights in any mahal" in Section 7 of the Rent Act. 5. In my opinion, they mean a loss or parting which divests absolutely of all proprietary rights, leaving no interest of a proprietary kind in the mahal. This does not happen in the case of a usufructuary mortgage. 6. A mortgage is defined in the Transfer of Pro....

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....iling rate payable by tenants-at-will for land of similar quality and with similar advantages." 11. Persons having such rights of occupancy shall be called ' ex-proprietary tenants,' and shall have all the rights of occupancy tenants. 12. I consider that the words "who may lose" in paragraph 1 mean involuntarily lose, for instance, by auction-sale, and that the words "part with" mean voluntarily and entirely divested of, by means, e,g., of gift or private sale. If the Legislature had intended that the person making a usufructuary mortgage should thereby become an ex-proprietary tenant of the sir-land, there could have been no difficulty in expressing their meaning in clear and unambiguous language. If the words "every person who may hereafter lose or part with his proprietary rights in any mahal" are meant to include every person who may, for however short a time, make a temporary transfer of a small portion of his zamindari property, I think it cannot but be admitted that the language used to convey that meaning is extremely obscure, and is calculated to mislead a large proportion of the persons interested in understanding it. Obviously a person cannot, in the genera....