K. N. Misra, J. - (1.) HEARD learned counsel for the petitioner Sri S. P. Tripathi and perused the impugned orders passed by opposite parties nos. 1 to 3.
(2.) THE dispute is now confined to plots nos. 427 and 434 of Khata nos. 23 B and 23 C. It is not disputed that Niga was the Bhumidhar of the aforesaid plots in question. He had on 15th January 1974 executed an agreement for sale in respect of the said plots to Rajdeo opposite party no. 6. Subsequently on 14th March 1974 he executed a registered mortgate deed in favour of Tameshwar opposite party no. 4 and the said mortgagee was in possession over the aforesaid two plots. During consolidation operations petitioner Smt. Bhagwatia filed an objection 'under Sec. 9-A(2) of the U. P. Consolidation of Holdings Act claiming that she is daughter of Niga and as such she inherited the property of Niga upon his death. There was certain other plots besides the aforesaid two plots in dispute. Smt. Bhagwatia was held to be daughter of Niga and her name was recorded on the land recorded in the name of Niga. In respect of the aforesaid two plots her claim was rejected by the Consolidation officer vide order dated 16th January 1980 holding that since Niga had executed a registered mortgage deed in favour of Tameshwar and possession was also delivered to the mortgagee on the basis of the aforesaid possessory mortgage deed and as such the said mortgagee Tameshwar became Bhumidhar of the land in question in view of the provisions contained under Sec. 164 of the U. P. Zamindari Abolition and Land Reforms Act. The petitioner preferred an appeal against the said order which was rejected by the Settlement Officer (Consolidation) vide order dated 19th December 1980 and the revision filed by the petitioner was also rejected by the Deputy Director Consolidation vide order dated 23rd March 1981. The petitioner has challenged the orders passed by opposite parties nos. 1 to 3 in respect of the aforesaid two plots in question. Learned counsel for the petitioner contended that since Niga was mortgagor of the land in question and it was stipulated in the mortgage deed itself that -the property would be liable to be redeemed within a period of three years and as such the petitioner being daughter of Niga inherited the land in suit and she stepped into the shoes of her father as mortgagor and her name, be therefore, recorded as Bhumidhar over the land in dispute. In support of his argument learned counsel for the petitioner referred to a decision of the Board of Revenue in Deo Narain v. Amar Deo Singh, 1971 R. D. 270, wherein it has been held that ; "In the instant case the transaction shows that the defendant was entitled to cultivate the land and get the profits therefrom in lieu of the interest of money advanced by him. There is no mention in the documents executed by him that the possession was being transferred for the purposes of securing the payment of the money advanced, which is the specific condition laid down in Sec. 164 of the Act. Thus in view of the legal position enunciated above I am of the opinion that the transfer of possession through the two hand notes is not hit by Sec. 164 of the Act and it would not be correct to say that the transaction would amount to sale."
(3.) THIS decision is clearly distinguishable. In the aforesaid case, as was apparent from the two hand notes executed by the plaintiff in favour of the defendant the latter was put into possession over certain portions of plots in dispute only in lieu of interest and not for the purposes of securing the payment of money advanced as a loan to the plaintiff. The defendant was not given right under the hand notes to get the land sold off for non-payment of loan. The, transaction thus did not amount to mortgage of land. The object of the mortgage is to secure payment of money and the mortgaged property is liable to be sold for non payment of loan. The language used in Section 164 of the U. P. Zamindari Abolition and Land Reforms Act is exacty the same as under Section 58 of the Transfer of Property Act, which defines mortgage. Section 164 of the said Act applied to usufructary mortgages where possession is transferred to the transferee for the purposes of securing any payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of any engagement which may give rise to a pecuniary liability. In the present case the petitioner's father had executed a registered mortgage deed and possession was transferred to the mortgagee for securing payment of loan the mortgagee could sell the land for n0n payment of loan. The transaction thus amounts to a usufructary mortgage of Bhumidhari land which would be deemed to be sale under Section 164 of the U. P. Zamindari Abolition and Land Reforms Act.;