- (1.) THIS is a revision under sec. 26 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, against the appellate order of the Additional Commissioner. Jaipur dated the 4.11.53, whereby the decisions of the trial court and the first appellate court were set aside and the applicants application for redemption of mortgage over the land in dispute was rejected.
(2.) I have heard the parties and have gone though the record as well. I have no hesitation in observing that there is absolutely no substance in this revision. The mortgage alleged by the applicant finds no mention in the Revenue record. Nor any registered deed in support of the creation of the mortgage has been alleged to exist or proved in the case. On the other hand; the entries in the Gasht Girdawari clearly show the opposite party to be a sub -tenant holding land under the applicant who is recorded as a khatedar of the same.
(3.) AS the lower courts have discussed the provisions of the Karauli State Revenue Code on the subject and have expressed divergent views thereon, it would be proper to examine the carefully here as well. The point was examined by the Board in case No. 27/Sawai Madhopur of Svt. 2010 - -Sanvalia vs. Lallu Singh, (1954 RLW Revenue Supplt. 10) and it was observed that the provisions of the law requiring prior sanction of the Deputy Collector for creation of a mortgage are mandatory. The trial court and the first appellate court appear to have been misled by the use of the word may in Chapter IX of the Code. Rule 21 of this chapter runs as follows: - - "Effect may not be given to a sale or mortgage unless it is sanctioned by the Deputy Collector. This sanction may not be given until the requirements of the Registration Law have been complied with." The procedure to secure such sanctions is contained in the following rule which runs as follows: - - "22. An application to have a mortgage recorded must be filed at the Tehsil on an eight anna stamp paper as soon as possible after the transaction. The Tehsildar will examine the parties and report to the Deputy Collector who will sanction the mortgage if it is found a bonafide transaction and the necessary conditions are fulfilled and no loss is likely to accrue to the State. Necessary entries will be made in the Patwaris mutation register." This makes it perfectly clear that seeking permission for having a mortgage recorded is not optional but mandatory. To quote Maxwell - - Interpretation of statutes. Page 246 - -"Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they may or "shall, if they think fit",or, "shall have power", or that "it shall be lawful" for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have - - to say the least - -a compulsory force, and so would seem to be modified by judicial exposition...." The word may as used in Rule 21 is equivalent to shall in the context. The learned Additional Commissioner, therefore, came to a correct conclusion in the case. The revision is hereby rejected. ;