Dave, J - (1.) THIS reference has been made by learned Members of the Board of Revenue under section 12 of the Rajasthan Land Revenue Act, 1956.
(2.) THE fact giving rise to it are that the muafi estate of the respondents was resumed under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (Act No. VI of 1952 - which will hereinafter be referred as "the Act" ). THE claim of the muafidars for compensation and rehabilitation grant was inquired into by the Deputy Collector, Jaipur, Udaipur. During the course of that inquiry, the appellant Vijaya Rajendra Suri filed an application before the said Deputy Collector requesting him to determine his interest in the jagir-land and award him a sum out of the compensation which was to be given to the muafidars, whose jagir-land was mortgaged with him. THE Deputy Collector rejected his claim relying on the decision of the Revenue Board in Sharvan Nath etc. Vs. Kundanlal, case No. 10 (Chittor) of 1958, decided on 21st February, 59. Aggrieved by that order, an appeal was filed by him under sec. 39 of the Act before the Board of Revenue. He relied on another decision of a Division Bench of the Revenue Board in case No. 10 (Udaipur) of 1958, decided on 15th June, 1959 in which a contrary view was taken. Thus, there being two conflicting decisions of two different Benches of the Revenue Board, the case was referred before a larger, Bench, consisting of four learned Members, including two learned Members who had expressed divergent opinions in the earlier cases referred above. It appears from the language of the reference made by this larger Bench that the learned members were inclined to hold that the view taken earlier in case No. 10 of 1958, decided on 21st February, 1959, Shravan Nath etc. Vs. Kundan Lal, but they considered it proper to make a reference to this Court, because some civil courts had also taken the view that the Jagir Commissioner alone had jurisdiction to determine the interest of a mortgagee under sec. 37 of the Act and the jurisdiction of civil courts was barred by sec. 46 thereof. Shri, J. S. Chordia, appearing for Vijaya Rajendra Suri, has urged that the view taken in Shravan Nath etc. Vs. Kundanlal, which is supported by the full Bench of the Revenue Board is not correct and that the Jagir Commissioner alone had the jurisdiction to determine the question relating to the interest of a mortgagee in a jagir-land under sec. 37 of the Act. Shri Ratan Lal Purohit, appearing for the muafidars, has tried to support the contrary view. Learned Government Advocate has also supported the opposite view. The main argument advanced by Shri Chordia is to the effect that sec. 37 of the Act lays down that if in the course of a proceeding under the Act, any question relating to title, right or interest in any jagir land arises, and the question so arising has not already been determined by a competent authority, the Jagir Commissioner shall proceed to make an inquiry into the merits of the question so arising and pass such orders thereon as he deems fit. Sec. 58 of the Transfer of Property Act defines a mortgage as a transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. It is urged by learned counsel that the mortgage is thus the transfer of interest in specific immovable property and since the words appearing in section 37 of the Act are "interest in any jagir land", it follows that the Jagir Commissioner alone had authority to decide the question relating to the mortgage alleged by his client. It is further urged by him that his argument finds further support from section 73 sub-section (2) of the Transfer of Property Act, which runs as follows - - "where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894, or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or part, out of the amount due to the mortgagor as compensation. " We have given due consideration to this argument but, in our opinion, it is not tenable. It may be observed that so far as sec. 73 sub-sec. (2) of the Transfer of Property Act is concerned, it only lays down that if any mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee would be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation. It is clear that it only gives a substantive right to the mortgagee to recover his money in case the mortgaged property is acquired under some statute, but it is completely silent about the forum where the mortgagee should present his claim. The question which has been referred for our decision is : whether the proper forum for the mortgagee to file his claim with regard to his mortgage-money is the Jagir Commissioner or the Civil Court ? On this question sec. 73 (2) does not throw any light. This question will have to be determined by going through the entire scheme of the Act. As regards the argument of the learned counsel depending on the definition of the term "mortgage", under section 58 of the Transfer of Property Act it is true that mortgage is the transfer of an interest in specific immovable property for the purpose of securing payment of money advanced or to be advanced by way of loan, but the converse cannot be necessarily true in every case. In other words, it cannot be said that interest in any jagir land must necessarily be a mortgage and no other kind of interest and, therefore, we have to see in what sense these words were used in section 37 of the Act. Now, it may be pointed out that the term "jagirdar" has been defined in section 2 (g) of the Act as meaning any person recognised as a jagirdar under any existing Jagir law and includes a grantee of Jagir land from a jagirdar. It is obvious that this item does not cover a mortgagee of a jagirdar. We may next point out to section 22 of the Act which deals with the consequences of resumption of jagirs and the relevant portion of which runs as follows: - "22. Consequences of resumption.- (1) As from the date of resumption of any jagir lands not withstanding anything contained in any existing jagir law applicable thereto but save as otherwise provided in this Act - (a) the right, title and interest of the jagirdar and of every other person claiming through him in his jagir lands, including forests, trees, fisheries, wells, tanks, ponds, water channels, ferries, pathways, village sites, hats, bazars and mela-grounds and mines and minerals whether being worked or not, shall stand resumed to the Government free from all encumbrances; (b) all rights, title and interests created in or over the jagir by the jagirdar or his predecessor-in-interest shall, as against the Government, cease and determine; (c) all rents and cesses in respect of any holdings {including any land leased or on behalf of the jagirdar for any purpose other than agriculture) in the jagir land for any period after the date of resumption which, out for such resumption, would have been payable to the jagirdar, shall be payable to the Government; (d) all revenue, rents, cesses or other dues for the agricultural year in which the date of resumption falls, recovered by the Jagirdar before the said date or by the Government after the said date, shall, after deducting therefrom the expenses of collection at the rate of 7 per cent be rateably distributed between the Jagirdar and the Government the amount to be distributed bearing to the total amount recovered during the agricultural year the same proportion which the period before the date of resumption or as the case may be, the period after the said date bears to the whole of the agricultural year; (e) all arrears of revenue, cesses or other dues respect of any jagir land due from the Jagirdar for any period prior to the date of resumption including any sum due from him under clause (d) and all loans advanced by the Government or the Court of Wards to the Jagirdar shall continue to be recoverable from such Jagirdar; (f ). . . . . . . . . (g ). . . . . . . . . (h ). . . . . . . . . (i ). . . . . . . . . (2) Nothing contained in this section shall - (a) render the Government liable for the payment of debts incurred by the jagirdar and the jagirdar shall be personally liable for the payment of all such debts; It would appear from the perusal of sub-sec. (l) (a) that from the date of the resumption jagir lands, the right, title and interest of the jagirdar and of every other person claiming through him in his jagir lands stand resumed to the Government free from all encumbrances. The words "free from all encumbrances" are very significant and they clearly indicate that as soon as the resumption is made, the jagir does not remain subject to any encumbrances, if it was earlier imposed by the jagirdar Clause (b) further shows that all rights, title and interests created in, or over, the jagir by the jagirdar or his predecessor-in-interest cease and come to an end as against the Government from the date of resumption. It is urged by learned counsel that according to clause (e) dues in respect of any jagir land continue to be recoverable from the jagirdar and that the words "other dues" are wide enough to bring within their ambit the debts secured or unsecured created by the jagirdar. In our opinion, this argument is not tenable, because the words "other dues" appear after the words "all arrears of revenue, cesses or" and, therefore, they should be understood in the sense of dues of the state and not in the sense of the private debts of the jagirdars. This would be clear from the use of the further words"in respect of any jagir land due from the Jagirdar for any period prior to the date of resumption". It needs no argument to explain that debts as such cannot be due for any period prior to the date of resumption. It is also noteworthy that the same words "revenue, rents, cesses or other dues" appear in clause (d) and the language of that clause obviously excludes the private debts created by the jagirdar, because the word "dues" has been used there along with the "agricultural year" for which they are recovered. This position would become still clearer from the perusal of sub-sec. (2) which says that nothing which is contained in sub-sec. (1) would render the Government liable for the payment of debts incurred by the Jagirdar and that the Jagirdar would be personally liable for the payment of the outstanding debts. If the debts of the Jagirdars were to be covered-by the terms "other dues" this provision would have been unnecessary. In this connection, we may also point out the provisions of Rule 37 (c) of the Rajasthan Land Reforms and Resumption of Jagir Rules, 1954. It relates to the determination of the dues and debts owned by the Jagirdar but the perusal of the entire rule shows that the dues and debts contemplated are dues and debts only of the state and not of private persons. Rule 37 requires that the Jagirdar concerned should file a statement of claim as required by sec. 31 of the Act for the compensation before the Jagir Commissioner. This claim is to be filed in form 5 or 5 A prescribed by the rules. We have looked into these forms also and we find that they do not contemplate if a jagirdar is required to show the debts secured or unsecured which he owns to private persons. Part C of Form No. 5 relates to statement of only those dues and debts which are recoverable by the Government from the Jagirdar. It would be pertinent to refer at this stage to the provisions of the Rajas-than Jagirdars' Debt Reduction Act, 1956 (Act No. 9 of 1957) as well Sec. 2 clause (m) of this Act defines "secured debt" as meaning a debt secured by mortgage of jagir land or jagir lands and other immovable property. Sec. 3 runs as follows : "3. Reduction of secured debt at the time of passing of decree: - (1) Notwithstanding anything in any law, agreement or document in any suit to which this Act applies relating to a secured debt, the court shall, after the amount due has been ascertained but before passing a decree, proceed as hereinafter stated. (2) (a) When the mortgaged property consists exclusively of jagir lands and such lands have been resumed under the provisions of the Act, the court shall first ascertain whether the mortgagor had the right, under the jagir law in force at the time the mortgage deed was executed, to mortgage the jagir lands, or failing that whether specific permission for effecting the mortgage was obtained from the competent authority, and whether the mortgage was validly subsisting on the date of resumption of the jagir lands. (b) If the mortgagee was legally and properly made and was validly subsisting on the aforesaid date, the court shall reduce the amount due in accordance with the formula given in Schedule I. (3) Where the mortgaged property consists partly of jagir lands as aforesaid and partly of property other than such lands, that court shall after taking action in accordance with the provisions of sub-clause (a) of sub-sec. (2), proceed to distribute the amount due on the two properties separately, in accordance with the principles contained in sec. 82 of the Transfer of Property Act, (1882 IV of 1882) as if they had been properties belonging separately to the persons with separate and distinct rights of ownership; and after the amount due has been so distributed, reduce the amount due on the jagir lands in accordance with the formula given in Schedule I. " It would appear from the perusal of sec. 3 that it lays down the procedure as to how a civil court should proceed in a suit which relates to a secured debt of a Jagirdar. Sub-sec. (1) lays down that notwithstanding anything in any law, agreement or document, in any suit to which this Act applies relating to a secured debt, the court should first ascertain the amount which is due from the Jagirdar to the creditor and after this has been done, it should proceed in the manner laid down in sub-sec. (2) and (3 ). Sub-sec. (2) provides that if the mortgaged property consists exclusively of jagir lands and if those jagir lands have been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952, the Court should first find out whether the mortgagor had a right, under the jagir law in force at the time the mortgage was executed, to mortgage the jagir lands, or failing that, whether specific permission for effecting the mortgage was obtained from the competent authority, and whether the mortgage was validly subsisting on the date of resumption of the jagir lands. If the court comes to the conclusion that the mortgage was legally and properly made and that it was validly subsisting on the date of the resumption of the jagir laws, then a duty is cast on the court to reduce the amount of the debt in accordance with the formula given in Schedule I. Sub-sec. (3) provides as to how the court should proceed if the mortgaged property consists partly of jagir lands and partly of other properties. We need not go into the detailed provisions of this sub-section since the necessity for the application of that section does not arise before us. It would suffice to observe that the said provisions leave no room for any doubt that a suit against a Jagirdar, whose jagir has been resumed by the State, is maintainable in a civil court with regard to his debts secured or unsecured. It is for the civil court to give him relief by reducing the secured debt in accordance with the formula prescribed thereby. If the words "interest in any jagir land" appearing in sec. 37 of the Act were to include mortgage of the jagir property, then a suit could not be entertainable by a civil court on account of sec. 46 of the Act which clearly lays down that save as otherwise provided in the Act, no civil or Revenue Court shall have jurisdiction in respect of any matter which is required to be settled, decided or dealt with by any officer or authority under the Act. If the view which is propounded by the learned counsel for the petitioner is accepted, then the Jagirdars' Debt Reduction Act would become altogether redundant.
(3.) OUR reply to the reference, therefore, is that the claim of a mortgagee of a jagir land is not envisaged by sec. 37 of the Act and, if there is a dispute about a secured debt beteeen the Jagirdar and the mortgagee of a jagir land, that is to be decided by a civil court and not by the Jagir Commissioner. In view of the fact that only a subtle question of law was involved in the reference, we leave the parties to bear their own costs. .;