MUSAMMAT MOHAN DEVI Vs. JAHANGIR MAL

JUDGEMENT

(1.) THIS appeal arises out of a suit for arrears of rent, The facts are a little complicated. The defendants-respondents are sons of one Bhim Sen. Bhim Sen was an occupancy-tenant and in the year 1903 he made a lease for fifteen years in favour of the husband of the plaintiff. THIS lease -was clearly in the nature of a mortgage and in the Court below it was admitted to be so. The defendants- respondents appear to have been zemindars of the village in which the occupancy- holding was situate whether they were sole zemindars or not does not appear, but it does appear that a sum of Rs. 150 was paid by the husband of the plaintiff to the defendants-respondents at the time of the execution of the mortgage. THIS sum was paid to the defendants-respondents as the rent payable by their father Bhim Sen as occupancy-tenants to the defendants-respondents as zemindars for the whole period of fifteen years. Bhim Sen has since died and the defendants- respondents have stepped into their father s shoes as occupancy-tenants and are now in Occupation of the holding. Under the terms of the Tenancy Act the occupancy-holding should have devolved on the defendants-respondents. The defendants plead amongst other things that the mortgage of the occupancy- holding was absolutely null and void and, therefore, the plaintiff was not entitled to recover the rent sued for. It is impossible to distinguish the present case from the case of Ram Sarup v. Kishen Lal 29 A. 327 unless the matter which we have already referred to is a distinction. In Ram Sarup v. Kishen Lal 29 A. 327 it was held that where an occupancy-tenant executed a usufructuary mortgage of the occupancy-holding and then the occupancy-tenant was put in as a subtenant the rent could not be recovered. The facts of the present case are entirely similar except that in the present case in the events which have happened the defendants-respondents occupy the dual position of zemindars in the village and also represent the interest of their father Bhim Sen in the occupancy-tenancy. In our opinion this fact does not in principle make any difference. The defendants are not sued as zemindars. They are sued by the mortgagee of an occupancy-holding as the representatives of the occupancy-tenant, who had been put in by the alleged mortgagee as sub-tenant. In our opinion the decision of the Court below was correct. We dismiss the appeal with costs including in this Court fees on the higher scale.