GULZARI LAL Vs. HAR PRASAD

JUDGEMENT

(1.) Gulzari Lal the plaintiff-appellant in these two appeals, is the mortgagee of one fourth share in two groves. The mortgage was executed in the year 1916 by Bhola Chamar. The mortgaged share has now passed into the possession of the Zamindar by a sale executed by Bhola's widow, Mfc. Umrai, in the year 1920. The plaintiff sues for recovery of his mortgage money by sale, if necessary, of the mortgaged share, against Mt. Umrai and the legal representatives of the Zamindar Bhawani Prasad who is now dead. The suit was resisted by the latter set of defendants. They are the respondents to these appeals. The real question in the appeals is whether it was competent to Bhola to mortgage his share in the groves. The two plots in question were originally his occupancy holding. In the year 1901, long before the mortgage in suit, the Zamindar entered into a formal agreement with him permitting him to convert the plots into groves. This agreement provided that he was to be the owner of one-fourth of the groves and the Zamindar of three-fourths, but reading the deed as a whole his right of ownership was not absolute. It was restricted in various ways. He was, for instance, not at liberty to cut down any green trees. There was a further restriction, and this is the clause which is material for the purpose of this case that he was not entitled to sell the share in the groves except to the Zamindar. There was no prohibition against the groves being mortgaged but the learned District Judge has held that if the right of sale is excluded the right of mortgage must necessarily be excluded also and on this ground he has reversed the Munsiff's decree in favour of the plaintiff and dismissed the suit.

(2.) Three points have been argued in support of the appeals: (1) That under the village custom as recorded in wajib-ul-arz grove- holders have a right to transfer their groves. (2) That the agreement in dispute gives Bhola a full right of ownership in his share in the groves and that this right cannot be cut down by any subsequent restrictions. (3) That the learned District Judge was wrong in reading into the agreement a prohibition against mortgage which it does not contain.

(3.) The third plea is in my opinion the important one. This case is not governed by the general custom set out in the wajib-ul-arz but by the conditions of the contract entered into between the parties.