DIRGPAL SINGH Vs. SURAT UPADHIA

JUDGEMENT

(1.) The facts are these: Musammat Daulta Kuer, mother of the plaintiff, mortgaged the property in suit to the defendant while the plaintiff was a minor. The plots mortgaged were 18, 46/26, 47/51, 52, 53, 182, 311, 242 and 273. The plaintiff's case was that his mother, without any authority or legal necessity, mortgaged the property to the defendant for no consideration and that the mortgage of the properties, which were occupancy holdings, was void. He, therefore, claimed possession of all the plots. The defence was that the plaintiff was bound by the mortgage created by his mother. The Court of first instance, coming to the conclusion that the mortgage was not binding upon the plaintiff, gave him a decree for possession of 182, 311, 242 and 273 and dismissed the suit as to the rest on the ground that the plaintiff had no right in them. The defendant appealed and the lower appellate Court modified the decree of the first Court in this way that it dismissed the claim for possession of plots Nos. 242 and 273. That Court came to the conclusion that the mortgage executed by the mother of the plaintiff was binding on him so far as it was executed for a purpose beneficial to the estate of the minor. That Court observed that out of a sum of Rs. 500, the sum of Rs. 324 was ancestral debt and that at least to that extent, it was beneficial to the plaintiff. As to the other plots that Court was of opinion that the plaintiff had occupancy rights in plots Nos. 182 and 311. Regarding plot No. 18 that Court observed that the plaintiff held it under a permanent lease and that, therefore, he was a non-occupancy tenant. The defendant comes here in second appeal and two pleas are urged before me by his learned counsel. The first is that plot No. 18 is as much transferable as plots Nos. 242 and 273, as it is held under a permanent lease and that plaintiff's suit for possession of that plot also should have been dismissed. The second point is that the plaintiff, after delivery of possession of the two plots of occupancy holding and after receiving the money, should not be allowed to take the benefit of his own wrong and to sue for recovery of possession of these plots without paying the mortgage money. In support of this proposition, the learned counsel relies on the case reported as Fasih-ud-din v. Karamat-Ullah A.W.N (1888) 128, in which the owner of the sir in dispute, after selling it and putting the vendee in possession, sued for possession of the sir without tendering that portion of the purchase money which was the price of the sir. A Bench of this Court in dismissing his claim observed: ?We are here administering the law and are bound to administer the law, as far as we can, according to equity and good conscience and it seems to us that if we were to pass a decree in favour of the plaintiff, we would be violating every principle of equity and good conscience."

(2.) The learned Vakil for the respondent, in reply to the first contention, argues that when plot No. 18 has been found to be a non-occupancy holding, it is as much nontransferable as the occupancy holding. I am of opinion that the contention of the learned counsel for the appellant in this respect is right. When the plot is found to be land held under a permanent lease and. when it is situated in the district of Ghazipur, the plaintiff must be deemed to be a permanent tenure- holder and his interest is transferable under the provisions of Section 20(2) of the Tenancy Act.

(3.) The argument of the learned Vakil for the respondents relating to the second point is that under the authority of Dipan Rai V/s. Ram Khilawan Rai 7 A.L.J. 330 : 32 A. 383 : 5 Ind. Cas. 557, the plaintiff is entitled to recover possession without paying the mortgage-money.