RAM PARGAS UPADHYA Vs. SOOBA UPADHYA

JUDGEMENT

(1.) THIS appeal arises out of a suit for redemption of a sub-mortgage. One Balgobind Rai was the occupancy tenant of a holding. He, on the 20 of July 1881, mortgaged this holding to one Raj Kumar Lal and on the 23 of November 1899, Raj Kumar Lal executed a sub-mortgage of a portion of the mortgaged property in favour of the defendants and again on the 8 of July 1904, he executed a further mortgage of the same property in favour of the defendants. Then on the 9 of July 1907, Raj Kumar transferred his mortgage security to the plaintiff. The plaintiff instituted the suit, out of which this appeal has arisen, for the redemption of the sub-mortgages executed in favour of the defendants by Raj Kumar, his predecessor-in-title. The Court of first instance dismissed the plaintiff's claim but on appeal the lower appellate Court reversed the decision of the Court below and gave a decree in favour of the plaintiff. Against this decree the present appeal has been preferred and the only contention raised before us on behalf of the appellants, is that which is stated in the second paragraph of the grounds of appeal, viz, that the transfer in favour of the plaintiff dated the 7 of July 1907, was illegal and created no right which can be enforced in a Court of justice". The appellants case is that inasmuch as under Section 29 of the Agra Tenancy Act, Act II of 1901, the holding of an occupancy tenant cannot be transferred except as provided in that section, Raj Kumar was not in a position to transfer his mortgage to the plaintiff and the plaintiff consequently was not in a position to redeem the defendants mortgages. There appears to us to be no force in this contention. At the time when Balgobind Rai executed the mortgage of the 20 of July 1881, he had power to do so and Raj Kumar acquired under that instrument a valid mortgage with all the rights and incidents attaching to such mortgage. As such mortgagee he had power to execute a sub-mortgage, and as such mortgagee he was entitled to transfer his mortgage security, the right of transfer being an incident of the mortgage. No doubt Section 20 of the Agra Tenancy Act prohibits the transfer of an occupancy except as therein provided. But that Act was not in force when the mortgage of the 20 of July 1881 was executed and by the provisions of the United Provinces General Clauses Act of 1904, rights accrued before the Agra Tenancy Act came into force are not prejudiced by that enactment. Section 6 of the General Clauses Act to which we have referred, provides among others that where any United Provinces Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed". As we have said, a mortgage of an occupancy tenancy executed prior to the Agra Tenancy Act is valid. THIS was so decided in the case of Babu Lal V/s. Ram Kali A.W.N. (1906) 28 : 3 A.L.J. 40. The mortgage, therefore, ot the 20 of July 1881, was a valid and subsisting mortgage under which the mortgagee possessed all the rights of a mortgagee including the right to transfer his mortgage and also a right to. sub-mortgage. Having sub-mortgaged the property, the mortgagee, possessed the right to redeem that mortgage and a transferee from him had a like power. It is said that this view is in conflict with a ruling of this Court in Harnandan Rai v. Nakchhedi Rai A.W.N. (1906) 302 : 3 A.L.J. 691. The facts of that case are not similar to those now before us. In that case a simple money bond was executed before the passing of the Agra Tenancy Act, in which there was a provision that in default of payment of the debt the simple bond should be converted into a usufructuary mortgage. Default was made in payment but not till the 22nd of June 1902 when the Agra Tenancy Act was in force and it was held that the agreement of the parties to create a usufructuary mortgage could not be carried out in view of the provisions of Section 20 of that Act. It is obvious that this case was governed by different considerations from those which present themselves in the present appeal.

(2.) WE think that the lower appellate Court was right and dismiss the appeal with costs including fees in this Court on the higher scale.