- (1.) THIS is an appeal under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act. 1952 (hereinafter referred to as the Act) against an order of the Deputy Collector Jagir dated 4. 12. 57 whereby the appellant's request for payment of mortgage money due to the appellant on the basis of a mortgage alleged to have been created by the ex-Jagirdar upon the resumed Jagir land out of the compensation and rehabilitation grant was rejected.
(2.) WE have heard the learned counsel for the parties and have examined the case as well. A significant point of law is involved for determination in the case, namely, which authority is competent to hear and determine disputes relating to mortgages created over Jagir lands after the resumption of the Jagir under the Act. The learned lower court has after referring to the provisions of sec. 22 of the Act held that such disputes ought to be decided by a Civil Court and the decree of a Civil Court as and when awarded would be executed by the Jagir Commissioner out of the compensation payable to the Jagirdar. Sec. 22 is completely silent on the point. It lays down the consequences of resumption. As provided in clauses (a) and (b) of sub-sec. (1) of this section the right, title and interest of the Jagirdar and of every other person claiming through him shall stand resumed to the Government free from all encumbrances and of rights, title and interest created in or over the Jagir by the Jagirdar or his predecessor-in-interest shall, as against the Government, cease and determine. Clause (a) of sub-sec. (2) of this section further clarifies that nothing contained in this section shall render the Government liable for the payment of debts incurred by all Jagirdars and the Jagirdar shall be personally liable for the payment of such debts. What shall be the forum for the decision of disputes relating to such debts has not been dealt with in this section and hence the manner in which it has been interpreted by the lower court is clearly untenable. The debts and encumbrances created by the Jagirdar have as against the Government no validity or effect after resumption. But the personal liability of the Jagirdar towards such debts remains unaffected. WE may also refer to the Rajasthan Jagirdars Debt Reduction Act, 1956 which provides for the scaling down of debts of Jagirdars whose Jagir lands have been resumed under the provisions of the Act. Thus for an answer to the question that arises in this case we have to look to the other provisions of the Act and not sec. 22. These provisions are to be found in sec. 37 of the Act which lays down that if in the course of a proceeding under this Act any question relating to title, right or interest in any Jagir land other than a question referred to in sec. 3 of the Rajasthan Jagir Decisions and Proceedings Validation Act arises and the question so arising has not already been determined by a competent authority the Jagir Commissioner shall proceed to make an enquiry into the merits of the question so arising and pass such orders thereon as he deems fit. The interest of a mortgagee to receive money out of the compensation payable in respect of a Jagir land after resumption is an interest within the meaning of this section. The word 'mortgage' has been defined in sec. 58 of the T. P. Act 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. The quantum of interest that is transferred is immaterial for any interest for the purpose specified in the section would give rise to a mortgage. The interest transferred would depend upon the character of the mortgage. In a simple mortgage the interest conveyed is the right to cause the property to be sold. In a usufructuary mortgage the transfer made is of the right of possession and enjoyment of the usufruct. A mortgage is a transfer of an interest and in this respect it differs from a charge. A charge-holder is only entitled to have his claim satisfied out of a particular property, but neither the property nor any interest therein is transferred to him. Thus transfer of an interest in immovable property being the essence of a mortgage it naturally follows that the mortgagee of a Jagir land demanding payment of his mortgage money after resumption would be raising the question of an interest within the meaning of sec. 37 of the Act. The learned Government Advocate argued that as the question had not arisen in the course of proceedings under the Act, sec. 37 cannot be attracted to the case. An answer to this question will be found in a judgment of the Rajasthan High Court in Revision No 49 of 1957, decided on the 19th September, 1957 (Sukhdeo vs. Thakur Jhanjarkaran ). That was a case which commenced in 1939 in the former Jodhpur State upon a plaint presented by persons alleging themselves to be Dolidars of the disputed land. The Jagirdar of that village was alleged to be obstructing in the enjoyment of their grant and was also alleged to have taken wrongful possession of some portions of the grant itself. That case lingered on for about 17 years and in 1956 the Special Judge came to the conclusion that the suit was triable by a revenue court. The matter went up in Revision and Modi J. was pleased to observe that after the enactments of the Act neither a Civil Court nor a Revenue Court had authority to decide the question of title involved in the case and the fame was transferred to the Court of the Jagir Commissioner. Two previous decisions of the Rajasthan High Court on the point - Rajvi Abhey Singh vs. The State of Rajasthan; Prabhulal vs. Ratan Singh were also examined in this case. The principles deducible from these decision were summarised thus: - (1) A question of title, right or interest in any Jagir land may arise on the resumption of a Jagir under the Resumption Act. These questions may be of two kinds, namely, relating to succession to Jagirs or Resumption of Jagirs and other questions relating to right, title or interest in a Jagir. (2) The question covered by the first category would fall outside the purview of sec. 37 of the Act and would be governed by the provisions contained in the Rajasthan Jagir Decisions and Proceedings Validation Act. (3) As respects matters covered by the second category mentioned above sec. 37 of the Act would be clearly attracted and if such a question has not already been determined by a competent authority, the Jagir Commissioner alone would be competent to determine the same. While applying these principles to that case the High Court was further pleased to observe that the Jagir having been resumed the question of compensation to the Jagirdar "is and must be very much before the Jagir Commissioner. " It was on the basis of this reasoning that sec. 37 of the Act was held applicable to that case. This line of reasoning leaves no room to doubt that irrespective of the fact as to whether a litigation commenced prior or subsequent to the referencement of the Act but if it involves a question covered by sec. 37 the proper authority to determine the same would be the Jagir Commissioner even if the question has not arisen in a proceeding commenced under the Act. However, in the present case the Jagir has been resumed and that the question of compensation is before the Jagir Commissioner. The applicant seeks a payment of his mortgage money from the compensation payable to the Jagirdar. Thus it is impossible to hold that sec. 37 is not attracted to the present case. We, therefore, allow this appeal, set aside the order of the lower court and remand the case back to it with direction that the same be heard and determined in accordance with the provisions of the Rajasthan Jagirdars Debt Reduction Act, 1956 (Act No. IX of 1957 ). .;