Barmeshwar Nath Prasad Singh v. Babu Kuer Rai And Others

Choudhary, J.:— The suit, out of which the present appeal arises, was instituted by the plaintiffs on the 12th of September, 1955, to enforce two mortgage bonds, one dated the 18th of March, 1952, executed by defendant No. 1 Bhrigunath Sahay in favour of plaintiffs 1 and 3 for a sum of Rs. 8,000.00, and the other dated the 25th of November, 1952, executed by the same Bhrigunath Sahay for a sum of Rs. 3,000.00 in favour of plaintiffs 2 and 5. Defendants 2 and 3 are the minor sons of Bhrigunath Sahay (defendant No. 1). Original defendant No. 4 in the suit was Shrimati Ramdulari Kuer wife of Kamla Prasad Singh, alleged to be a purchaser and subsequent mortgagee of a portion of the mortgaged properties. Defendant No. 5 Bhagwat Prasad alias Laloo Babu is a subsequent mortgagee in respect of some of the mortgaged properties. Defendants 1 to 3 appeared and filed a written statement admitting the claim of the plaintiffs. Defendant No. 5 also filed a written statement contending, inter alia, that the mortgage bond dated the 18th March, 1952, in favour of the plaintiffs, was not genuine said for consideration and that he himself was a mortgagee in respect of a portion of the mortgaged properties under a mortgage bond dated the 6th of November, 1952. The suit was mainly contested by substituted defendant No. 4 Kamla Prasad Singh husband of the original defendant No. 4 Ramdulari Kuer.

2. During the pendency of the suit, Ramdulari Kuer, original defendant No. 4, died on the 18th of December, 1955, and on an application filed by the plaintiffs on the 5th of January, 1956, her husband, Kamla Prasad Singh, and her two minor sons, Markandey Singh and Jamuna Singh alias Kundan Singh, were substituted in her place as defendants 4, 4(a) and 4(b) respectively. Kamla Pd Singh (hereinafter to be referred to as the defendant No. 4) filed a written statement on the 24th of April, 1956, in which he stated that his wife, Ramdulari Kuer, had entered into a contract for sale in respect of a portion of the mortgaged properties with the defendant No. 1 on the 1st of December, 1951, 4nd, in pursuance thereof, got a registered sale-deed executed in her favour on the 22nd of October, 1954, bona fide for value without notice of the plaintiffs' mortgages. He further submitted that the suit was bad for defect of parties, inasmuch as his youngest minor son, Barmeshwar Nath Prasad Singh (the appellant before this Court), was not made a party to the suit. Thereupon, another application was made on behalf of the plaintiffs on the 27th of June, 1956, for amendment of the plaint by adding the said Barmeshwar Nath Prasad Singh as a party defendant to the suit. In that application, it was specifically stated on behalf of the plaintiffs that they had no previous knowledge that the said Kamla Prasad Singh had one more son, namely, Barmeshwar Nath Prasad Singh. That application was allowed, the plaint was amended and Barmeshwar Nath Prasad Singh was added as defendant No. 6. Two formal written statements were filed an behalf of the substituted minor defendants, one on behalf of Barmeshwar Nath Prasad Singh (defendant No. 6) and the other on behalf of Markandey Singh and Jamuna Singh alias Kundan Singh, through their pleader guardian ad litem. One of the pleas taken in the written statement on behalf of Barmeshwar Nath Prasad Singh was that the suit had abated as a whole, as the plaintiffs never took step to substitute him, who was the sole legal heir of the deceased Ramdulari Kuer, within time, although the plaintiffs had full knowledge of the same from before. All the pleas taken in defence contesting the suit of the plaintiffs were overruled by the Court below and the plaintiffs' suit was decreed. Being thus aggrieved, this appeal has been presented in this Court by the said Barmeshwar Nath Prasad Singh (defendant No. 6) only; the other defendants did not file any appeal against the decree passed by the Court below. The properties mortgaged in the first mortgage bond were — (1) certain proprietary interest in tauzi No. 7573, (2) a two-storeyed brick built house in Mahalla Sheoganj, one of the quarters of Arrah town, and (3) 20 Karis of land with a mud-built house, with filed roof, situate in the same Mahalla Sheoganj. In the second mortgage bond, besides the above three items of properties, 6 karis parti land with sehan in Mahalla Sheoganj was also mortgaged. In January, 1956, the proprietary interest mortgaged under the two bonds vested in the State of Bihar under the provisions of the Bihar Land Reforms Act. The suit to enforce the mortgages, as already said, was filed on the 12th of September, 1955. During the pendency of the suit, the plaintiffs filed a claim case under Section 14 of the Bihar Land Reforms Act before the Claims Officer in respect of the second mortgage bond dated the 25th of November, 1952. It appears that, after this appeal was filed in this Court, along with an application for permission to appeal in forma pauperis, on the 10th of May, 1957, the claim case was allowed for a sum of Rs. 9,480.00 on the 25th of September, 1958. The pauper application (M.J.C No. 302 of 1957) was allowed on the 22nd of September, 1959, and this appeal was registered on the 24th of September, 1959. A certified copy of, the order of the Claims Officer is sought to be taken as additional evidence in this appeal.

3. The first point raised on behalf of the appellant is that, he being the sole heir of Ramdulari Kuer and not having been substituted in her place within time allowed by law, the suit abated so far as the interest of Ramdulari Kuer was concerned. It was submitted that the appellant was the only son of Ramdulari Kuer, and Markandey Singh and Jamuna Singh alias Kundan Singh were her stepsons, being sons of Kamla Prasad Singh from his predeceased wife. The argument is that the above-named two step-sons of Ramdulari Kuer were not her legal heirs and the only legal heir, that is, the appellant, was not substituted in her place within the time allowed by law, and, as such, the suit abated so far as her interest was concerned. On the records of the case, however, there is no material for coming to a finding that Markandey Singh, and Jamuna Singh were the step-sons of Ramdulari Kuer. In the written statement filed by Kamla Prasad Singh (defendant No. 4), it was not staged that they were his sons from another wife and all that was stated was that he had one more son, namely Barmeshwar Nath Prasad Singh, who had not been impleaded in the suit. In the formal written statement filed on behalf of the appellant also it is not specifically stated that the above two sons were the step-sons of deceased Ramdulari Kuer, and only a vague statement was made that the appellant was her sole legal heir. Even to the witnesses examined on behalf of the plaintiffs, no suggestion was made that Markandey Singh and Jamuna Singh were the step-sons of deceased Ramdulari Kuer. On behalf of the defendants, only one witness was examined for defendant No. 5 Bhagwat Prasad, and to him also no suggestion was made about it. No witness was examined on behalf of the other defendants, including the appellant, to prove that he alone was the legal heir of the deceased Ramdulari Kuer and that Markandey Singh and Jamuna Singh were her step-sons. It is not, therefore, possible to hold that Markandey Singh and Jamuna Singh were not the sons of Ramdulari Kuer and that they were her step-sons. The contention raised on behalf of the appellant in this regard, therefore, fails.

4. It has then been contended by learned counsel for the appellant that, even if Markandey and Jamuna be the sons of Ramdulari, the appellant was admittedly not sought to be substituted in her place within the time allowed by law, and, therefore, the suit abated so far as he was concerned. The argument is that, on the death of Ramdulari, all her heirs were not substituted and the substitution of only some of the heirs could not save the suit from abatement. Learned counsel has contended that, in order to have complete representation of deceased Ramdulari Kuer, all her sons should have been substituted in time, and if anyone of them had been omitted to be substituted, the suit abated so far as the omitted heir was concerned. The question to be decided, therefore, arises, as to whether a suit abates if any of the several heirs is not substituted within the time allowed by law. It may be noted here that the case of the plaintiffs, as disclosed in the amendment petition, is that they had no previous knowledge of the existence of the appellant. There is nothing on the record to contradict this statement of the plaintiffs made in the amendment petition and to show that the omission to substitute the appellant was in any way mala fide on behalf of the plaintiffs. There also does not appear to be any motive for the plaintiffs to omit to substitute the appellant when actually, as stated in the amendment petition, an application was made for substitution of the heirs who were known to the plaintiffs. Thus, it is apparent that the application for substitution was made of the persons whom the plaintiffs bona fide believed to be in existence.

5. A similar question arose before a Bench of this Court in Shib Dutta Singh v. Sheikh Karim Bakhsh*, ILR 4 Pat 320 : (AIR 1925 Pat 551). In that case, respondent No. 1 died leaving several heirs, and within the time allowed by law an application for substitution of some of his heirs was made and the substitution was allowed. Subsequently, it was brought to the notice of the appellant that respondent No. 1 had died leaving more heirs, and, after due inquiry, the appellant made an application for adding those heirs as party respondents to the appeal. One of the contentions raised on behalf of the respondent was that the appeal had already abated so far as the heirs subsequently sought to be brought on the record were concerned. Their Lordships, on the facts of that case, were satisfied that the appellant bona fide made the application for substitution of only some of the heirs of the deceased respondent because he had no knowledge of the existence of the other heirs. In that view of the matter, their Lordships held that there was no abatement. The reasons that were given for coming to the above decision may profitably be quoted in the language of their Lordships as under:

“Personally speaking we are of opinion that the appeal in the present case did not ??? inasmuch as an application for bringing upon the record some of the heirs of the deceased respondent No. 1 was already made within time. Rule 4 of Order XXII, clause (3), directs that the appeal shall abate where within the time limited by law no application is made under sub-rule (1). Here an application, as already observed, was made within time. Therefore, the appeal did not abate as against the deceased respondent. The respondent No. 1 having died the appeal could abate only if it was not continued against his representative by an application made within time, and the moment the application was made within time the appeal was saved from abatement. The bringing on the record subsequently of the other heirs of the deceased will be simply an addition of the names in the category of respondents.”

6. This case was followed in a subsequent Bench decision of this Court in Madhusudan Lal… v. Sailendra Kishore…., AIR 1950 Pat 359. That was a case where the respondent died leaving a Will giving his entire estate to his sister's daughter's son, Sailendra Kishore, and appointing his father, Nand Kishore Chand, as the executor. An application for probate of the Will was also filed. Subsequently, an application was made for substitution of the widow of Ram Babu (deceased), and later on another application was filed to add Sailendra Kishore as a party respondent under the guardianship of his father, Nand Kishore Chand, in addition to the said widow. An objection was raised on behalf of the said Nand Kishore Chand that, as he had been appointed the sole executor under the Will, he was the only legal representative of deceased Ram Babu and, as he had not been brought on the record till then, the appeal had abated. In the meantime, a probate of the Will was granted and subsequently the widow of deceased Ram Babu died. Thereafter, an application was made on behalf of the appellant that, as the said Nand Kishore Chand had obtained a probate of the Will, he should be made a party respondent in order to avoid future difficulties and that the name of the widow, since deceased, should be struck off. The argument advanced on behalf of the executor was that, as he was not brought on the record within the time allowed by law, the appeal should be held to have abated. Following the decision in Shib Dutta Singh, ILR 4 Pat 320 : (AIR 1925 Pat 551), it was held in that case that the action of the appellant was bona fide and, therefore, the said case should govern the appeal before their Lordships Consequently, their Lordships held that there was no abatement.

7. The same view has been taken in Muthuraman Chettiar v. Adaikappa Chetty, AIR 1936 Mad 336, where it was held that when a party takes proper steps to substitute on the record the representative of an adversary who had died pendente lite, he is not to be penalised because he has not brought on record the whole of the representatives. He can only act to the best of his knowledge. Relying on the case of Shiba Dutta Singh, ILR 4 Pat 320 : (AIR 1925 Pat 551), their Lordships observed that there was ample authority for the proposition that a suit does not abate merely because all the representatives of a deceased party have not been brought on the record. Following the above Patna decision, the same view was taken in another decision of the Madras High Court in Abdulla Sahib v. Vageer Beevi Ammal, AIR 1928 Mad 1199. In Kadir Mohideen Marakkayar v. Muthukrishna Ayyar, ILR 26 Mad 230, it was held that it is sufficient for the plaintiff in a suit, if a defendant dies, to put one of the heirs on the record as his legal representative who will then represent the estate of the deceased for the purpose of the suit and that it would be impossible for a plaintiff to find out who are all heirs of a deceased defendant, and it is for those who claim to be heirs to come in if they wish to be represented in the suit. Following the above decision, a Bench of the Bombay High Court, in Jehrabi Sadullakhan Mokasi…Plaintiff v. Bismillabi Sadruddin Kaji…Defendant ., AIR 1924 Bom 420, took the same view.

8. In Ishwarlal Laxmichand v. Kuber Mohan, AIR 1943 Bom 457, the sole appellant died leaving a widow and a son as his heirs and legal representatives. The son alone made an application for being substituted in place of the deceased appellant. A question arose whether the widow, who also was one of the legal representatives under the Hindu Women's Rights to Property Act, 1937, should have made an application for her substitution. It was held in that case that it would have been proper if both the son and the widow made an application that they should be brought on record as legal representatives, but the appeal did not abate merely because the sou alone had made the application and was brought on the record. A Bench of the Lahore High Court, in Mt. Umrao Begum v. Rahmat Ilahi, AIR 1939 Lah 439 has taken a similar view and has held that, upon the death of the appellant, if one of his legal representatives is properly brought on record, this should prevent the appeal from abating and that applications to place other legal representatives on record can be made and allowed even after the period of limitation has expired and such applications do not Operate as an automatic abatement of the appeal. Exactly the same view was taken in Adusupalli Venkata Row v. Marikruthu Ammal, 13 Ind Cas 313 (1) (Mad).

9. In Maiyarajan Bibi v. Abdul Shek, AIR 1933 Cal 498, it was held that where, on the death of the plaintiff, the Court orders the substitution of two persons as heirs of the deceased but finds subsequently that there are two other heirs of the deceased and the omission was bona fide, the suit does not abate as a whole and they also can be substituted. In somewhat similar circumstances, a Bench of the Rajasthan High Court, in Poonam Chand v. Motilal, AIR 1954 Raj 287, took the same view. In that case, during the pendency of an appeal, one of the respondents, who was a necessary party, died leaving behind his three minor sons. The appellant, after making due enquiries and bona fide believing that the deceased respondent had only two minor sons, brought their names on record within limitation. But as he came to know of the third minor son, who was the youngest of all, after the period of limitation had expired, be brought that fact to the Court's notice and filed another application for bringing him on record. It was held that the estate of the deceased respondent was sufficiently represented by the two minor sons, who were brought on record within time, and, therefore, the appeal did not abate by reason of the fact that the third minor son was not brought on record within limitation.

10. Reference in this connection may be made ??? two more cases of this Court, namely, (1) Sadhu Saran v. Nand Kumar, AIR 1926 Pat 276 and (2) Lilo Sonar v. Jhagru Sahu*, AIR 1925 Pat 123. In AIR 1926 Pat 276, one of the respondents namely, Nand Kumar Singh, died and in his place the appellant substituted, one of his widows, Mossammat Ramkali Kuer. At a subsequent stage, it turned out chat Nand Kumar had another widow named Sheoratan Kuer. Their Lordships held that the appeal against Nand Kumar Singh could not abate as one of his heirs, that is, Mossammat Ramkali Kuer, was already on the record and the bringing in of Sheoratan Kuer on the record was only for the purpose of final disposal of the appeal. In Lilo Sonar, AIR 1925 Pat 123, respondent Jhagru Sahu died leaving several heirs, one of whom, namely, Doman, was already on the record as respondent No. 2. No application for substitution of his other legal representatives was made within the statutory period. It was, therefore, contended that the appeal had abated. Their Lordships accepted the contention; but, while discussing certain decisions cited by the appellant in support of his contention that the presence of Doman on the record as the legal representative could prevent the appeal from abaring, their Lordships observed

“These cases do not go so far. They only lay down that, where there are several representatives, if an application is made within time for bringing anyone of them on the record, the appeal does not abate, and that the other legal representatives may be made parties to the case even after the expiry of the time fixed for substitution. It is notable that in all those cases an application was made as required by Rule 4 of Order 22 as regards one of the legal representatives within time. The rule does not require that all the legal representatives should be on the record, and, if one of them is properly brought on the record as legal representative, there will be no abatement.”.

11. Reference was also made to a Full Bench decision of this Court in Mt. Hifsa Khatoon v. Mohammad Salimar Rahman, AIR 1959 Pat 254. In the case, however, all the heirs or legal representatives of the deceased were already on the record, and it was, therefore, held that it was not necessary to make an application for their substitution in place of the deceased. That case, therefore, has no application to the facts of the present case, inasmuch as in this case the legal representatives of the deceased were not at all on the record.

12. Reliance has been placed by counsel for the appellant in support of his contention on the cases of AIR 1925 Pat 123; Awadh Bihari Prasad v. Jhaman Mahton, AIR 1953 Pat 324; Dhanuka Singh v. Saudagar Singh, AIR 1955 Pat 240; Mt. Murti Goalin v. Ram Briksha Gope, AIR 1959 Pat 446; Baijnath Ram v. Mt. Tunkowajti Kuer, AIR 1962 Pat 285 (FB) and Gauri Shankar Singh v. Smt. Jwalamukhi Devi, AIR 1962 Pat 392. In Lilo Sonar's case, AIR 1925 Pat 123, a reference to which has already been made above, the deceased respondent had left many legal representatives, one of whom alone was already on the record. No application for substitution of any of the other heirs was ever made within the prescribed period. It was, therefore, held that the appeal abated. In AIR 1953 Pat 324, the suit was brought against individual members of a joint family and not in a representative capacity. One of them having died, no application for substitution was made for bringing his widow on the record. It was contended that, since all the co-parceners were already on the record, there could be no abatement. This argument was not accepted, and it was held that the Hindu widow was a legal representative of the deceased co-parcener and an application should have been made for substituting her in place of the deceased co-parcener.

13. In AIR 1955 Pat 240, in an appeal arising out of a suit for partition of a Hindu joint property, one of the respondent coparceners died leaving behind him his widow and sons. The sons were already on the record, but no application was made to substitute the widow. It was held that, in view of the peculiar status created for the widow under the Hindu Women's Rights to Property Act entitling her to claim partition in her own right, the sons could not represent her interest and, as such, the appeal abated. In AIR 1959 Pat 446, the sole appellant, who was defendant No. 1, died and some of the remaining defendants applied for transposition stating that they were the only heirs of the husband of the deceased appellant and were consequently the legal representatives of her husband. Her husband, however, had a sister who was also his heir. The defendants who claimed to be transposed suppressed the existence of the sister and put forward their claim also on the basis of surrender made by the appellant in their favour. Subsequently, it was brought to the notice of the Court that the husband of the appellant had a sister also. The transposed defendants at first denied her existence which led to an enquiry by the Registrar, and, during the course of the enquiry, they admitted her existence. In those circumstances, it was held in that case that the application of the defendants seeking to be transposed was mala fide, inasmuch as their motive was to disinherit the sister, both on the ground of her non-existence as well as on the ground of surrender in their favour. It was therefore, held that the appeal abated. But, in course of discussion of the law on the subject, his Lordship observed that, in case of representatives unknown and unwilling to join in the application under Order XXII, Rule 3 of the Code of Civil Procedure, a bona fide application by all the representatives known or willing may be a sufficient compliance with the law.

14. In AIR 1962 Pat 285 (FB), during the pendency of an appeal against a final decree for mesne profits, one of the appellants died leaving behind a son and two grand-sons. No application for substitution of his heirs was made within the prescribed period. Subsequently, after the expiry of the period of limitation, an application was filed to bring them on record under Rule 10 of Order XXII of the Code of Civil Procedure. The question that had to be decided in that case was, whether such a case was governed by Rule 3 of Order XXII or Rule 10 of that order. It was held that Rule 10 had no application and the case was governed by Rule 3 of Order XXII and, as such, the appeal abated. The question that falls to be decided in the present case did not arise in that case. That case, therefore, has no application to the instant case. In AIR 1962 Pat 392, one of the respondents died leaving several heirs, one of whom was already on the record. The remaining heirs, namely, his widow and two daughters, who were his heirs under the Hindu Succession Act, were not brought on the record with the prescribed period. Subsequently, an application was made, after the prescribed period of limitation, for substitution of the widow and the two daughters in place of the deceased respondent. It was not the case of the appellants that they had no knowledge of the existence of the widow and the two daughters of the deceased respondent. The application for substitution, having been filed beyond time, was rejected and it was held that the appeal abated. In course of the discussion of the law on the subject, however, their Lordships made an observation that there was nothing in the language of Rule 4 of Order XXII of the Code of Civil Procedure to indicate that it would be sufficient to substitute in time only some of the several known legal representatives of the deceased. Counsel for the appellant in the present case has strongly relied on this observation which, in my opinion, is a mere obiter. The question whether an application for substituting some of the known heirs made within time would save the abatement or not was not a question to be decided in that case. That was a case, as already observed, where one of the heirs was already on the record and no step was taken for substitution of any of the other heirs.

15. The decisions referred to above are no authority for the proposition that where, on the death of a party to the proceeding, an application for substitution of some of his heirs is made within time, the appeal will abate for non-substitution of the other legal representatives. On a careful consideration of the cases cited on behalf of both parties, the law on the subject appears to me to be as follows:—

(i) Where all the heirs and legal representatives of a deceased party are already on the record in any capacity, there is no necessity for filing an application for their substitution.

(ii) Where a deceased party leaves behind several heirs, some of whom only are already on the record, an application for substitution of his other heirs has to be made within the prescribed period in order to save abatement.

(iii) Where the deceased leaves several heirs and a bona fide application for substitution of only some of them has been made, there is full representation of the deceased and there is no abatement; the other heirs may subsequently be added as parties even beyond the period of limitation.

(iv) Where the deceased leaves behind several heirs, but a mala fide application is made for substitution of some of them only, such an application does not prevent abatement.

16. On the view that I have taken of the law on the subject, there was no abatement of the suit in the present case, because the plaintiffs bona fide made an application for substitution of two of the elder sons of deceased Ramdulari Kuer in ignorance of the existence of the third minor son. This third minor son was legally and rightly brought on the record on an application being made by the plaintiffs in that regard, even though that application was filed beyond the prescribed period. The contention raised on behalf of the appellant has, therefore, to be rejected as having no substance.

17. The next contention raised on behalf of the appellant is that, in view of Section 14 of the Bihar Land Reforms Act (Bihar Act 30 of 1950) hereinafter to be referred to as ‘the Bihar Act’ the suit was not maintainable in the Civil Court. Section 14(1) of the Bihar Act states that every creditor, whose debt is secured by the mortgage of, or is a charge on, any estate or tenure or part thereof vested in the State under Section 3 or 3-A may, within six months of date of such vesting or the dare on which such creditor is dispossessed under the provisions of clause (g) of Section 4, or within three months from the date of appointment of the Claims Officer, whichever date is later, notify in the prescribed manner his claim in writing to a Claims Officer to be appointed by the State Government for the purpose of determining the amount of debt legally and justly payable to each creditor in respect of his claim. Section 16 of the Act snakes provision for the Claims Officer to determine the, principal amount justly due to each creditor and the interest, if any, due at the date of such determination in respect of such principal amount. In this connection a reference may be made to Section 4(d) of the Bihar Act which states that no suit shall lie in any Civil Court for the recovery of any money due from such proprietor or tenure-holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped. Section 4(e) says that no such estate or tenure shall be liable to attachment or sale under the processes of any Court and any order of attachment passed in respect of such estate or tenure before the date of vesting shall cease to be in force.

18. It is urged on behalf of the appellant that, since certain proprietary interest was mortgaged in both the mortgage bonds, the mortgagees had to seek their remedy by filing a claims case before the Claims Officer and they could not institute a suitor enforcing the mortgages in the Civil Court. In reply to this argument, counsel for the plaintiffs-respondent has submitted that the prohibition to enforce a mortgage in Civil Court relates only to such properties which have vested in the State under the provisions of the Bihar Act, and not to any other property which has not so vested in the State. In other words, his contention is that where a mortgage contains several properties, some of which have vested in the Stare and others not, then the prohibition to institute a suit in the Civil Court will be applicable only with respect to those properties which have vested in the State, and not with respect to the other properties which also are given in mortgage. On the other hand, counsel for the appellant has argued that, even though the mortgage, apart from the properties which have vested in the State, consists of such other properties which have not so vested, the prohibition will apply and a suit will not lie in the Civil Court. According to him, in all such cases the only remedy available to the mortgagee is to put forward a claim before the Claims Officer under Section 14 of the Bihar Act. In my opinion, the contention raised on behalf of the appellant has no merit and that raised on behalf of the plaintiff-respondents is sound and must prevail.

19. There are ample authorities in support of the view taken above. In Raghubir Saran v. Kaviraj Basudevanand, 1953 BLJR 563, a Bench of this Court held that, where money is secured by a mortgage or charge on estates, some of which are notified under Section 3 of the Bihar Act, and the others are not so notified, the bar of Section 4(d) of the Act is limited to the estates that have vested in the State, and does not extend to the estates or portions of estates which are not so vested. It was also pointed out in that case that Section 14 of the Bihar Act is enacted in a permissive form, and where the mortgage relates to notified estates and to estates which are not notified, it is open to the creditor to file a suit or to prosecute an execution case in the Civil Court but he cannot pursue his remedy in the Civil Court so far as vested estates are concerned. It was further laid down that it is open to the creditor to make an election as to the choice of his remedies. He may give up his right of filing a claim under Section 14 of the Bihar Act with respect to the vested estate and prosecute the suit or execution proceeding, so far as estates which have not vested, in the Civil Court; or he may give up his remedy in the Civil Court and prosecute his claim solely under Section 14 before the Claims Officer.

20. The question at issue ultimately fell to be decided by a Full Bench of this Court, in Sukhdeo Das v. Kashi Pd. Tewari, 1958 BLJR 559 : (AIR 1958 Pat 630), which approved the Bench decision of this Court in the case just referred to above. In that case, certain proprietary interest, including bakasht lands, was given in simple mortgage. A decree was obtained on the mortgage and the decree was put in execution. In the meantime, the proprietary interest, the subject-matter of the mortgage, vested in the State of Bihar under the provisions of the Bihar Act. The mortgagee, therefore, could not proceed to enforce the decree against the said proprietary interest. He, however, sought to proceed against the bakasht lands lying within the said proprietary interest which, under the provisions of the Act, remained with the mortgagor with an altered character of statutory raiyati lands. The question arose whether such bakasht lands which, on the vesting of the estate, assumed the characteristics of statutory raiyati lands could be proceeded against for realisation of the mortgage decree. The Full Bench decided that, on vesting of the estate, the mortgage is not destroyed, but it becomes inoperative upon such properties as no longer belong to the mortgagor. It was pointed out that there was no law to debar a mortgagee from realising his mortgage debt from lands which did not vest in the State under the provisions of the Bihar Act and that the combined effect of Sections 3, 3-A, 4 and 6 of the Bihar Act is that the lands in cultivating possession of the intermediaries do not vest absolutely in the State but remain with the intermediaries and would be deemed to have been settled with them. It was further held that a mortgage in respect of such land was not extinguished under Section 4(d), nor the remedy of the mortgagee was barred, and that it was open to the mortgagee either ta make use of the provisions of Section 14 of the Act or to execute his decree by pursuing that property of the mortgagor which did not vest in the State.

21. Before I proceed further with other decisions on the point, it is necessary to refer to two decisions of the Supreme Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, Allahabad, AIR 1961 SC 1790 and Krishna Prasad v. Gouri Kumari Devi, AIR 1962 SC 1464, on which counsel for the appellant has strongly relied. It has been submitted by him that the correctness of the above Full Bench decision of this Court has been shaken by the, two Supreme Court decisions referred to above. In Sheo Ambar Singh's case, AIR 1961 SC 1790, their Lordships of the Supreme Court had to consider the provisions of the U.P Zamindari Abolition and Land Reforms Act (I of 1951) hereinafter referred to as the ‘U.P Act'. What happened in that case was that the appellant's father had executed a mortgage in favour of the respondent Allahabad Bank Ltd., mortgaging 67 villages in the year 1914. A suit to enforce the mortgage was filed and a preliminary decree for recovery of the amount due was passed. Subsequently that decree was made final which directed sale of the proprietary rights of the mortgagor in those 67 villages. Later on, the decree had to be amended under the provisions of the U.P Agriculturists' Relief Act, 1934, and the, execution proceeding that had been started was dropped, as instalments had been fixed under the above Act. Eventually, the respondent had to apply for execution in the year 1940 and, for reasons not necessary to be mentioned here, the application remained pending till the U.P Act came into force in July, 1952. As a consequence of this Act, the Zamindari rights of the mortgagor were abolished and the respondent could no longer sell those rights in the 67 mortgaged villages. Thereupon, the respondent made an application that such rights of the mortgagor-judgment-debtor in those villages as remained in him after coming into force of the U.P Act might be sold, namely, the rights in trees and wells in abadi and buildings situate in various villages and his proprietary rights in grove land and sir and khudkasht land. It was finally prayed that compensation money payable to the judgment-debtor on the acquisition of his proprietary rights might be treated as substituted security. An objection was raised to this application by the judgment-debtor, but ultimately the executing Court held in favour of the respondent that it could proceed against the buildings, trees and wells situate in abadi and the bhumidari rights acquired by the appellant under Section 18 of the U.P Act. It was also held that the respondent was entitled to the compensation money.

22. In appeal before the High Court, it was contended that the bhumidari rights created under Section 18 could not be sold in execution of the decree, but the contention was not accepted and it was held by the High Court that the execution could proceed against the said bhumidari rights. The matter was taken to the Supreme Court and the main point urged on behalf of the appellant there also was that the said bhumidari rights could not be sold in execution of the decree. Taking into consideration the provisions of Sections 4, 6, 18 and other provisions of the U.P Act, their Lordships held that the proprietary rights in Sir and Khudkasht land and in grove land vested in the State and what was conferred on the intermediary by Section 18 was a new right altogether which he never had and which could not, therefore, have been mortgaged in 1914; and consequently they could not be sold in execution of the decree in question. It has, therefore, been contended on behalf of the appellant in the instant case that the above Supreme Court decision in Sheo Ambar Singh's case, AIR 1961 SC 1790 has shaken the authority of the Full Bench decision of this Court in Sukhdeo Das's case, 1958 BLJR 559 : (AIR 1958 Pat 630) so far as the Full Bench held that the bakasht lands which, on the vesting of the estate, became statutory raiyati land of the mortgagor could be proceeded against in execution of the decree passed on the mortgage of the proprietary interest under which the said bakasht lands lay. I am, however, unable to agree with this contention.

23. Although the provisions of the U.P Act as well as the Bihar Act are mostly similar, the relevant sections of the two Acts, so far as the question in controversy here is concerned, are materially different. Section 4 of the U.P Act provides for the vesting of an estate in the State on the making of a notification thereunder, and Section 6 prescribes the consequences of the vesting arising under Section 4. Section 6(a)(1) of the U.P Act states:

“(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 oustside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks……shall cease and be vested in the State of Uttar Pradesh free from all encumbrances.”

Clause (h) of Section 6 of the U.P Act lays down 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 Section 73 of the Transfer of Property Act, 1882, be enforceable against his interest in the estate. Section 9 of the U.P Act runs as follows:

“All wells or trees in abadi, and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the site of the wells or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed.”.

24. Section 18 of the U.P Act, so far as was relevant for the purposes of deciding the case before the Supreme Court, runs as follows:

“(1). Subject to the provisions of Sections 10, 15, 16 and 17, all lands:

(a) in possession of or held or deemed to be held by an intermediary as Sir Khudkasht or an intermediary's grove……… on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary, lessee, or tenant, grantee or grove-holder, as the case may be, who shall subject to the provisions of this Act be entitled to take or retain possession as a bhumidar thereof.”

25. On the words of the sections referred to above, their Lordships held that, so far as the bhumidari right was concerned, that was a new right created by the Statute and whatever right the intermediary had in such land prior to the vesting of the estate had vested in the State along with the proprietary interest. Section 6(a)(i) of the U.P Act makes the position perfectly clear, because it says that all rights, title and interest in every estate, including cultivable or barren land, grove land and forests shall cease and be vested in the State of Uttar Pradesh free from all encumbrances. Thus, the statutory settlement of these lands under S. 18 undoubtedly created a new right and that could not be proceeded against in execution of the mortgage decree. But, as Section of the U.P Act states that all wells or trees in abadi, and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the site of the wells or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed, the wells or trees in abadi did never vest in the State and remained part of the proprietary interest belonging to the intermediary. They were, therefore, held to be liable to be proceeded against in execution of the decree. That is not, however, the case with the Bihar Act.

26. The Bihar Act in this regard is in somewhat different terms. Section 4(a) of that Act states:

“Such estate or tenure including the interests of the proprietor or tenure-holder in any building or part of a building comprised in such estate or tenure and used primarily as office or cutchery for the collection of rent of such estate or tenure, and his interests in trees, forests, fisheries, jalkars, bats, bazars, mela and ferries and all other sairati interests as also his interest in all sub-soil including any rights in mines and minerals, whether discovered or undiscovered, or whether being worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure (other than the interests of raiyats or under-raiyats) shall, with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure-holder shall cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act.”

27. The interests expressly saved by or under the provisions of this Act are to be found in Sections 5, 6 and 7. Section 5 deals with the preservation of the rights of intermediaries in all homesteads, subject to certain other provisions, as being deemed to have been settled by the State with the intermediaries. Section 6(1) of this Act reads as follows:

“(1) On and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting, including:

(a)(I) proprietor's private lands let out under a lease for a term of years or under a lease from year to year, referred to in Section 116 of the Bihar Tenancy Act, 1885 (8 of 1885), (II) Landlords' privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral for a period of one year or less, referred to in Section 43 of the Chota Nagpur Tenancy Act, 1908 (Ben. Act 6 of 1908).

(b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and

(c) lands used for agricultural or horticultural purposes forming the subject-matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof; shall subject to the provisions of Sections 7-A and 7B, be deemed to be settled by the state with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the state having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the collector in the prescribed manner;

…………………………”

28. There is a proviso to that sub-section, but that is not relevant for the purposes of the present case. Section 7 preserves the rights of the intermediaries in respect of buildings, together with lands on which such buildings stand, in the possession of intermediaries and used as golas, factories or mills, subject to certain other provisions, which are deemed to have been settled with them. There is no other provision in the Bihar Act under which the intermediaries do not cease to have any interest in an estate which has vested in the state. Thus, the expression “other than the interests expressly saved by or under the provisions of this Act” in Section 4(a) of this Act must mean the interest of the intermediaries saved by Sections 5, 6 and 7 of this Act. It is, therefore, clear that, with respect to the lands and buildings dealt with in the above three sections, namely, Sections 5, 6 and 7, the intermediaries, even after the vesting of the estate, never cease to have any interest and they belong and remain as lands and buildings of the intermediaries, subject to the condition that they are deemed to have been settled by the State with them. Unlike Section 6(a)(i) of the U.P Act, cultivable lands, as held in the Full Bench decision of this Court in Sukhdeo Das, 1958 BLJR 559 : (AIR 1958 Pat 630), do not vest absolutely in the State, but remain with the intermediaries and are deemed to have been settled with them. The provision of Section 4(a) of the Bihar Act, in my opinion, is at par with Section 9 of the U.P Act, according to which all wells or trees in abadi etc., as mentioned in that section, do not vest in the State. The above Supreme Court decision, therefore, has no application to the Bihar Act and has no bearing on the Full Bench decision of this Court referred to above.

29. In AIR 1962 SC 1464, there was a mortgage of certain Zamindari property. The mortgagees obtained a decree in the Civil Court for realisation of the mortgage dues by sale of the mortgaged properties and ultimately the decree was put into execution. In the meantime, the Zamindari property, which was the only mortgaged property, vested in the State of Bihar under the provisions of the Bihar Act. An objection was, therefore, raised on behalf of the mortgagor-judgment-debtor that the said mortgaged property, having vested in the State of Bihar, could not be sold in execution of the decree, and the execution case was later on dismissed. Thereafter, the mortgagee-decree-holders proceeded to execute the decree against properties of the mortgagor other than the mortgaged Zamindari property, and they claimed that they were entitled to proceed against other properties by reason of the personal decree which had been passed against the mortgagor. An objection was raised to this execution on the ground that the decree-holders could not proceed against her other properties, as their remedy lay in following the compensation money which could be given by the State of Bihar to lie Mortgagor in lieu of the mortgaged property which had vested in the said State. The objection was overruled by the trial Court and a civil revision was filed in this Court on behalf of the judgment-debtor. This Court held that a personal decree had already been passed but the decree-holders had no right to execute the personal decree, inasmuch as Section 4(d) of the Bihar Act constituted a bar against such proceeding the High Court, therefore, allowed the civil revision application and directed that the execution petition filed by the decree-holder should be dismissed. That is how the matter went to the Supreme Court.

30. The question mooted before their Lordships was whether the decree-holders were entitled to execute the personal decree against other properties of the judgment-debtor or they had to prefer their claim before the claims Officer under Section 14 of the Bihar Act, as all the properties mortgaged in that case constituted an “estate” as defined in Section 2(i) of that Act. It was held in that case that the remedy of the decree-holders was to prefer a claim before the claims Officer, and, in coming to that decision, their Lordships made it perfectly clear that they were dealing with a case where the entire mortgaged properties belonging to the mortgagor-proprietor had vested in the state of Bihar and that it was not a case where a part of the properties mortgaged had vested in the State while some of them continued to be vested in the mortgagor. With respect to the claim of the decree-holders to execute the personal decree, their Lordships observed that it was only after the mortgagee-decree-holders had exhausted their remedy against the mortgaged properties that they were entitled to apply to recover the balance from the mortgagor-judgment-debtor personally otherwise than out of the properties mortgaged. Their Lordships in that case, therefore, had not to consider and did not consider as to what would happen if only a part of the properties mortgaged had vested in the State and the other part of the mortgaged properties continued to remain with the mortgagor. In that connection, their Lordships referred to the case of Raghubir Saran Rastogi, 1953 BLJR 563, also reported in ILR 32 Pat 581, and observed that, since they were dealing with a case where the whole of the mortgaged properties was an estate, it was unnecessary for them to consider whether the view taken by this Court in that case was correct or not. With respect to the Full Bench decision in 1958 BLJR 559 which is also reported in AIR 1958 Pat 630, their Lordships observed as follows:

“In AIR 1958 Pat 630, the Full Bench of the High Court had occasion to consider whether a mortgagee-decree-holder of the interest of the proprietor whose estate has vested in the State, is entitled to proceed against the Bakasht lands of the proprietor comprised in the said estate for recovery of the amount due to him under the mortgage decree, and it was held that in such a case, the mortgagee cannot be forced to seek his remedy under Section 14 and to satisfy his mortgage debt out of the compensation payable under the Act. It appears that the Full Bench was inclined to take the view that the interest of the judgment-debtor in the bakasht lands was one of the interests saved by S. 6 and that, in consequence, the bakasht lands continued to remain in the possession of the ex-proprietor not in the character of bakasht lands but as raiyati lands, and since these lands were a part of the security offered by the mortgage-deed, the decree-holder was entitled to proceed against them without taking his remedy under Section 14 of the Act. This conclusion was based on the view that the effect of S. 4(d) read with Sections 3 and 6 of the Act was not to destroy the mortgage in its entirety but only with respect to that part of the estate which had vested absolutely in the State and no interest therein is left with the mortgagor proprietor or tenure-holder. It is conceded by Mr. Jha that this decision also proceeds on the assumption that the mortgage security consists of an estate which has vested in the State and of bakasht lands which did not, in substance, vest in the State but continued with the mortgagor as raiyati lands. Therefore, it is not necessary for us to examine the merits of the conclusion reached by the Full Bench in this case. It may, however, be not out of place to add incidentally that Mr. Sarioo Prasad for the respondent has suggested that the assumption made by the Full Bench about the character of the bakasht lands by virtue of the provisions of S. 6 is inconsistent with the decisions of this Court in AIR 1961 SC 1790. His argument is that the provisions of Section 6 of the Act correspond to the provisions of Section 18 of the U.P Zamindari Abolition and Land Reforms Act (I of 1951) and that what this Court has said about the effect of the provisions of S. 18 has shaken the validity of the conclusion of the Full Bench in regard to the effect of Section 6 of the Act. We do not think it necessary to consider this point as well in the present appeal. In any case, both the decisions on which Mr. Jha has relief afford no assistance to us in dealing with the point with which we are concerned in the present appeal.”

31. Thus, it is clear that the above Supreme Court decision did not deal with the point in controversy in the instant case, as, on the facts of that case, their Lordships did not think that they were called upon to decide the same. This case, therefore, has no application to the facts of the present case.

32. The Full Bench of this Court in Anup Singh v. Ajodhya Prasad, AIR 1962 Pat 332 has taken the same view in regard to a case similar to that of the Supreme Court case in Krishna Prasad, AIR 1962 SC 1464. It has been held that where, after a decree for sale of the mortgaged properties has been passed, all the milkiat properties which formed the subject-matter of the mortgage transaction have been notified under Section 3 of the Bihar Act and they have vested in the State Government under the provisions of that Act, the decree-holder is not entitled to apply for a personal decree under Order XXXIV, R. 6, of the Code of Civil Procedure, unless he has first sought his remedy under Section 14 of the Bihar Act and made a claim for the satisfaction of the amount due to him from the compensation amount payable to the Judgment-debtor. In Kedar Prasad Singh v. Sita Saran Singh, 1963 BLJR 198, a Bench of this Court took the same view of Section 6 of the Bihar Act and held that the Bakasht lands of the proprietor-mortgagor do not vest along with the estate on issue of a notification under Section 3 of the Bihar Act, but they remain with the mortgagor, though in a transmuted form, and the mortgagee can proceed against them in execution for satisfaction of the mortgage decree and that the mortgagee's right to enforce his claim against the non-vested part of the mortgage security has not been taken away by the bar provided under Section 4(d), provided he chooses not to take advantage of recovery through the Act.

33. Since, however, there was some controversy with respect to the effect of the above two Supreme Court decisions on the authority of the Full Bench decision of this Court in Sukhdeo Das, 1958 BLJR 559 : (AIR 1958 Pat 630), another Full Bench was constituted, to set at rest the controversy, in Sidheshwar Prasad Singh v. Ram Saroop Singh, M.A No. 110 of 1961 along with Second Appeal 516 of 1961, Savitri Devi v. Ram Lakhan Missir, D/- 16-5-1963: (AIR 1963 Pat 412) (FB). The majority decision of the Full Bench affirmed the view taken by the earlier Full Bench in Sukhdeo Das, 1958 BLJR 559 : (AIR 1958 Pat 630).

34. The present case stands on a better footing, inasmuch as, besides the proprietary interest that vested in the State, the mortgages consisted of a house and other properties in Arrah town which did not vest in the State.

35. On a consideration of the authorities referred to above, my concluded opinion is that, where a mortgage consists of several items of properties, some of which have vested in the State of Bihar under the provisions of the Bihar Act and others have not so vested, the mortgagee has the option to elect whether he will seek his remedy under Section 14 of the Bihar Act or will proceed in the Civil Court as against the non-vested properties. A suit for enforcing the mortgage in such a case will be perfectly maintainable as against the non-vested mortgaged properties, but in no case the mortgaged properties vested in the State of Bihar will be proceeded against in the Civil Court.

36. In the instant case, as already said, 10 annas 8 pies proprietary interest in Tauzi No. 7573 was mortgaged in both the bonds. For the reasons given above, the mortgages could not be enforced against the said proprietary interest. The plaintiffs, however, are perfectly entitled to pursue their remedy for enforcement of the mortgages as against the remaining properties mortgaged in the two mortgage bonds. The decree of the trial Court, therefore, so far as the above proprietary interest is concerned, has to be set aside and the suit has to be dismissed with respect to the said proprietary interest. The decree of the trial Court could, however, be maintained with respect to the mortgaged properties other than the said proprietary interest.

37. But there is another difficulty in the way of the plaintiffs so far as their claim in respect of the second mortgage bond dated the 25th November, 1952, is concerned. From the facts stated above, it is clear that, with respect to this mortgage bond, during the pendency of this mortgage suit, the plaintiffs preferred a claim before the claims Officer and after the decree was passed and the present appeal was filed in this Court, the claim case was allowed for a sum of Rs. 9,480.00. On behalf of the appellant, an application has been filed for taking the certified copy of the order of the Claims Officer as additional evidence in this case. Counsel for the plaintiff-respondents has not controverted and could not controvert, in face of the said order, the fact of their claim having been allowed by the claims officer. As the order of the Claims Officer was passed after the disposal of the suit in the trial Court, it could not be brought on record during the pendency of the suit, and the Court is perfectly entitled to take into consideration events that have happened after the disposal of the suit. The certified copy of the order is, therefore, admitted into evidence and is marked as Ext. B-I in the case for the defendant-appellant. From this order, the contention of the Counsel for the appellant that the claim has already been allowed under the provisions of the Bihar Act is fully supported. The question is whether, in face of the order of the claims officer, the plaintiffs could enforce their second mortgage against the other mortgaged properties in the Civil Court. It has been pointed out in most of the cases referred to above on this subject that, where a mortgage consists of vested and non-vested properties, the mortgagee has the option to elect his choice to seek his remedy under the provisions of the Bihar Act or to institute a suit in the Civil Court for enforcing the mortgage as against the non-vested properties, but he cannot have both the remedies simultaneously. In the instant case, the plaintiffs, having already obtained an order for payment of the compensation money from the claims officer in accordance with the provisions of Section 14 of the Bihar Act, could not continue the proceeding for enforcing that mortgage in the Civil Court as against the non-vested properties. The suit of the plaintiffs with respect to the second mortgage bond dated the 25th November, 1952, therefore, has to fail on this ground. The result, therefore, is that the appeal is allowed in part, the suit of the plaintiffs with respect to the second mortgage bond dated the 25th November, 1952, is dismissed. The suit of the plaintiffs with respect to the first mortgage bond dated the 18th March, 1952, also is dismissed so far as the mortgaged proprietary interest of 10 annas 8 pies in Tauzi No. 7573 is concerned. Their suit for recovery of the mortgage money in respect of this mortgage bond as against the mortgaged properties other than the proprietary interest, referred to above, has been rightly decreed and the decree of the Court below to that extent is maintained. As the parties have even success in the case, they will bear their own costs throughout.

A.B.N Sinha, J.:— I agree.

IG/U/D.V.C

38. Appeal allowed in part.