MAHABAL SINGH Vs. RAM RAJ

JUDGEMENT

(1.) The fundamental question common to the revision and the two connected second appeals relates to the legal effect of a mortgage of tenancy or occupancy rights by a tenant and to the relief, if any, which can be granted to such a mortgagee in a suit brought by the mortgagor. There is also a question as to the appropriate form of action. The controversy arising in these cases will be clearer by a statement of facts in each case. I shall first take up the revision application.

(2.) This application arises out of proceedings under Section 12, Agriculturists' Relief Act and has arisen in the following manner. On 13th October 1900, Ram Adhin and Drigbijai Singh mortgaged an occupancy holding to Sheo Narain for Rs. 1000/-. The original mortgagors and the mortgagee are dead and are represented by their heirs and legal representatives. The representatives of the mortgagors filed an application under Section 12 for redemption of the mortgage and they claimed redemption on the ground that the entire mortgage money had been satisfied out of the usufruct of the property. The principal defence was that Section 12 did not apply to the case and the application was not maintainable. The issue framed on this point was whether the mortgage deed was void ab initio being in respect of the occupancy tenancy under Section 5, Avadh Rent Act.

(3.) The Munsif before whom the application was filed held that the land was rot an occupancy holding under Section 5 and therefore the mortgage was not void. He allowed redemption upon payment of Rs. 400/-. The lower appellate Court reversed the view of the trial Court and held that occupancy rights were transferred by mortgage and that the mortgage was void Under Section 5 and, having regard to the view held by the Chief Court of Avadh that Section 12 applied to valid mortgages only, it rejected the application as being not maintainable. The applicants filed the present revision application. As the connected second appeals raising a similar question had already been referred to the Full Bench, it was requested by both counsel that the revision should also be referred to the Pull Bench and heard along with those appeal.