1885 (3) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Whether a Zamindar who mortgages his mahal by usufructuary mortgage and gives possession to the mortgagee parts with his proprietary rights.
2. Interpretation of the terms "lose" and "part with" in Section 7 of the Rent Act.
3. The nature of proprietary rights and whether they are transferred in a usufructuary mortgage.
4. The implications of previous judgments on the current case.

Issue-wise Detailed Analysis:

1. Whether a Zamindar who mortgages his mahal by usufructuary mortgage and gives possession to the mortgagee parts with his proprietary rights:

William Comer Petheram, J.: The essence of a usufructuary mortgage, as defined by Section 58 of the Transfer of Property Act, is the transfer of interest in specific immovable property to secure the payment of money, with the mortgagor delivering possession to the mortgagee. The mortgagee is entitled to exclusive possession until the loan is repaid, effectively making the mortgagee the proprietor during that period. Thus, the mortgagor parts with his proprietary rights as he ceases to be the proprietor.

Douglas Straight, J.: The mortgage transaction transfers the legal estate in the zamindari to the mortgagee, entitling him to possession to the exclusion of the mortgagor. The proprietary right is lost or parted with when the mortgagor is deprived of the power to exercise full proprietary rights, even temporarily.

Syed Mahmood, J.: Proprietary rights equate to ownership, encompassing various component rights. A usufructuary mortgage does not transfer full ownership but involves parting with significant elements of ownership, such as possession and usufruct. This falls within the meaning of "parting with" proprietary rights under Section 7 of the Rent Act.

Oldfield, J.: Usufructuary mortgage does not divest the mortgagor of all proprietary rights, as the right to redeem remains. The full proprietary interest does not pass to the mortgagee, distinguishing it from a sale where ownership is fully transferred.

Brodhurst, J.: A person making a usufructuary mortgage does not lose or part with proprietary rights entirely. The mortgagor retains the ability to redeem or sell the property, indicating that proprietary rights are not fully parted with.

2. Interpretation of the terms "lose" and "part with" in Section 7 of the Rent Act:

Douglas Straight, J.: The terms "lose" and "part with" cover all cases where a proprietor is deprived of the power to exercise full proprietary rights, whether permanently or temporarily.

Syed Mahmood, J.: "Lose" refers to involuntary loss of proprietary rights, while "part with" includes voluntary alienation, whether temporary or permanent. The broad interpretation aligns with the rule that words must be understood in their broadest meaning unless restricted.

Oldfield, J.: "Lose or part with" implies a complete divestment of proprietary rights, which does not occur in a usufructuary mortgage.

Brodhurst, J.: "Lose" means involuntarily losing proprietary rights, and "part with" means voluntarily and entirely divesting proprietary rights. The language does not clearly include temporary transfers like usufructuary mortgages.

3. The nature of proprietary rights and whether they are transferred in a usufructuary mortgage:

William Comer Petheram, J.: The mortgagee becomes the proprietor during the mortgage period, indicating that the mortgagor parts with proprietary rights.

Douglas Straight, J.: The mortgagee's exclusive possession and the mortgagor's deprivation of full proprietary rights indicate a parting with proprietary rights.

Syed Mahmood, J.: Proprietary rights include various components, and parting with significant elements like possession and usufruct constitutes parting with proprietary rights.

Oldfield, J.: The right to redeem indicates that full proprietary rights are not transferred in a usufructuary mortgage.

Brodhurst, J.: The ability to redeem or sell the property means the mortgagor retains proprietary rights, indicating no full parting with proprietary rights.

4. The implications of previous judgments on the current case:

William Comer Petheram, J.: The decision in Bhagwan Singh v. Murli Singh is considered wrong and not followed.

Douglas Straight, J.: If usufructuary mortgage is not considered parting with proprietary rights, it would defeat the ex-proprietary right.

Syed Mahmood, J.: The judgment in Bhagwan Singh v. Murli Singh did not consider the reasons for the current view. The ruling in Ganga Din v. Dhurandhar Singh supports the view that usufructuary mortgage is a transfer under Section 9 of the Rent Act.

Oldfield, J.: Concurred with the judgment in Bhagwan Singh v. Murli Singh, indicating that usufructuary mortgage does not result in losing or parting with proprietary rights.

Brodhurst, J.: The judgment in Bhagwan Singh v. Murli Singh and the Sudder Board of Revenue's decision in Tarapat v. Kamalnain support the view that usufructuary mortgage does not result in losing or parting with proprietary rights. The Legislature's inaction to amend the law further supports this interpretation.

Conclusion:
The majority opinion holds that a usufructuary mortgage involves parting with significant elements of proprietary rights, thus falling within the scope of Section 7 of the Rent Act. However, a dissenting view maintains that usufructuary mortgage does not result in losing or parting with proprietary rights entirely.