GHASSU Vs. BABU RAM

JUDGEMENT

(1.) This is an application in revision against a judgment and decree dated 26th September 1942, of the District Judge, Mainpuri, by which he affirmed a judgment and decree dated 17 June 1942, of a Revenue Officer of Mainpuri in a suit for redemption under Section 12, U.P. Agriculturists Relief Act (27 of 1934). On 7th April 1920, Ganga Ram, an occupancy tenant of village Nagla Khujaria Mazra Bajhera, made a usufructuary mortgage of his occupancy holding in favour of Har Sahai for Rs. 300. Both the original mortgagor and the mortgagee are now dead. The plaintiffs alleging that they are the legal representatives of the mortgagor and that the mortgage has been satisfied out of the usufruct, raised an action in the Court of the Assistant Collector, First Class, Mainpuri under Section 12, Agriculturists Relief Act, for redemption of the above mortgage against the legal representatives of the mortgagee. One of the pleas in defence taken was that the mortgage in suit being of an occupancy holding was wholly void in law and the plaintiffs could not maintain an action under Section 12, Agriculturists Relief Act, which allowed redemption of valid mortgages only. This plea as also other pleas raised by the defence were overruled by the trial Judge and holding that the mortgage had been satisfied out of the usufruct of the property, he passed a decree for redemption in favour of the plaintiffs. On appeal this decree was affirmed by the District Judge. Against these concurrent decrees this revision has been made and it raises a pure question of law, namely, whether an action for redemption of a mortgage of an occupancy holding under Section 12, Agriculturists Relief Act, is maintainable or not, and on account of conflict of judicial authorities which exists upon the legal effect of a mortgage of an occupancy holding and the relief which, in certain circumstances, is open to the mortgagor in relation to such mortgage, this case has been referred to this Bench.

(2.) In successive Rent and Tenancy Acts which were enacted in these provinces, No. 12 of 1881, No. 2 of 1901, No. 3 of 1926 and No. 17 of 1939, varying restrictions had been placed upon the right of the occupancy tenants to transfer their holding. Prior to the enactment of N.W. Tenancy Act, No. 2 of 1901, a distinction was drawn in this Court between the "right of occupancy in" and the "right to occupy" the holding and in Khiali Ram V/s. Nathu Mal ( 93) 15 All. 219, a Full Bench of this Court recognising that distinction held that a usufructuary mortgage of an occupancy holding was merely a transfer of the right to occupy which was not prohibited by the Act and was permissible. After the enactment of the N.W. Tenancy Act, No. 2 of 1901, it has been a settled law in this Court that a usufructuary mortgage of the occupancy holding is void in law, see Ram Sarup v. Kishen Lal ( 07) 29 All. 327, and this view has been consistently maintained under successive Acts. The Board of Revenue, on the other hand, has consistently taken the view that a usufructuary mortgage of an occupancy holding by a tenant was only voidable against the landlord and as between the mortgagor and the mortgagee was a good transaction to the extent that the mortgagor after making the mortgage could not sue to eject the mortgagee as a trespasser : see Rup Singh V/s. Mt. Beera ( 18) 2 R.D. 305 (B.R.); Pitai V/s. Karedin Singh ( 33) 17 R.D. 370 (B.R.); Harsaran Pathak V/s. Abdullah Khan ( 37) 1937 R.D. 58 (B.R.); Thakur Das V/s. Nathu Ram ( 38) 1938 R.D. 249 (B.R.) and Jhurraoo V/s. Ram Kunwar ( 41) 1941 R.D. 585 (B.R.).

(3.) But though this Court has constantly taken the view that the usufructuary mortgage of an occupancy holding by a tenant is void and not voidable, nevertheless it has consistently laid down that if the mortgagee had been given possession of the holding and the mortgagor after giving possession seeks to eject the mortgagee as a trespasser, he cannot be allowed to recover possession of the holding without paying the money which he had taken from the mortgagee. So far back as the year 1888 it was laid down in Fasih Uddin V/s. Karamat Ullah ( 88) 1888 A.W.N. 128, that a sir-holder who had sold his sir after stipulating that he would not claim occupancy right in the sir could not claim exproprietary rights without tendering that portion of the purchase money which was the price of the sir and "it would be violating every principle of equity and good conscience to decree the claim without such payment," and this rule was applied to the usufructuary mortgage of the occupancy holding in Bahoran Upadhya V/s. Uttamgir ( 11) 33 All. 779, by Banerji and Tudball JJ., and in the case of void leases in Bisheshar Pathak V/s. Rup Narain Singh and in Kuber Singh V/s. Ram Chandra Bhunja . As a result of the rule laid down in Fasih Uddin V/s. Karamat Ullah ( 88) 1888 A.W.N. 128, the natural course of action on the part of the mortgagors who had made the usufructuary mortgage of the occupancy holding was to tender the amount which they had received from the mortgagees and to raise an action for redemption and such claims frequently came to this Court and were allowed : see Ramzan v. Bhukhal Rai ( 18) 5 A.I.R. 1918 All. 226, Durga Chaudhary V/s. Jagroop ( 23) 10 A.I.R. 1923 All. 191, Mt. Raj Rani V/s. Gulab and Mt. Dukhi V/s. Inderman Ahir .