BHIKHA Vs. UMRAO SINGH

JUDGEMENT

(1.) Bhikha, who is the appellant in this appeal, was a tenant with a right of occupancy. He purported to execute a deed of usufructuary mortgage, on the 26th May 1896, of his rights in 13 bighas, 2 biswas of the occupancy holding, in favour of the respondent Umrao Singh. In the deed which passed between the parties, the term for which the usufructuary mortgage was to hold good was a term of 20 years and the years are given as being the years 1304 Fasli to 1323 Fasli. Umrao Singh has brought the suit out of which this appeal arises to recover possession as usufructuary mortgagee over the above-mentioned land on the allegation that Bhikha failed to give him possession. In defence it was urged that under the provisions of Local Act No. II of 1901 the transfer was one which could no longer be enforced and the claim for possession was contrary to the terms of the deed. The Court of first instance decreed the claim for possession. The actual words used in the decree are: It is ordered and decreed that the plaintiff's claim for possession of 13 bighas, 2 biswas of the occupancy holding paying an annual rent of Rs. 93 and bearing the numbers given below, after removal of the standing crops, be decreed for the remaining period of the mortgage, dated 26 May 1896, and the defendant be totally dispossessed of the same and be declared to have no concern whatever." Bhikha appealed from this decree. The lower appellate Court dismissed the appeal. He accordingly comes here in second appeal. There arc three pleas set forth in the memorandum of appeal. The first and third of these were not pressed. The second plea was to the effect that the terms of the mortgage do not entitled the mortgagee to sue for possession, all the he could sue for was a money decree. Regarding this, plea we need only say this that we have examined the deed carefully and we are satisfied that it does give the mortgagee power to sue for possession. This plea, therefore, fails. It has also been argued before us in this appeal that to give a decree in this case would be to defeat the intention of the legislature when it enacted Section 20 of Local Act If of 1901. That section enacts: "The interest of an exproprietary tenant, an occupancy tenant or a non- occupancy tenant, other than a thekadar, is, subject to the provisions of Act, heritable, but is not transferable in execution of a decree of a Civil or Revenue Court. Although this point was not expressly taken in the memorandum of appeal, we have considered it, inasmuch as it would, in our opinion, be a mistake to grant a decree which would confer upon the holder, rights of no value, and might seriously affect persons who bought in good faith relying upon the decree so given. The same question was considered by this Court in Babu Lal V/s. Ram Kali 3 A.L.J. 40 : A.W.N. (1906) 28. The learned Judges who decided that case held that having regard to the rulings of this Court in Khiali Ram V/s. Nathu Lal 15 A. 219 and Brij Mohan Das V/s. Algu 26 A. 78, it was clear that in a case of this kind the plaintiff could succeed in recovering possession of the mortgaged property at any time before the passing of Local Act No. II of 1901. They further held that the act could not have retrospective effect, and if what the tenant did was valid under the law which was in force at the time when the mortgage was made, and if the mortgagee was entitled to enforce his mortgage before the passing of the new Act, he would be equally entitled to do so after the passing of that Act. The question, therefore, is not res integra, and we are not prepared to hold otherwise.

(2.) The act of transfer was completed when the deed of 26 May 1896 was executed and registered. The decree that we pass, based upon that, would merely be giving effect to a transfer already made. At the same time, the decree passed by the Court of first instance and confirmed by the lower appellate Court is one which cannot be allowed to remain as it stands. The proper decree, in our opinion, to be passed is that the plaintiff's claim for possession as usufructuary mortgagee over the interest of the defendant mortgagor in 13 bighas, 2 biswas of the occupancy holding be decreed fair the remaining period mentioned in the mortgage deed with this limitation that it will determine, if it has not previously determined, on the termination of the right of occupancy and will subsist no longer than the right of occupancy subsists.

(3.) The result, therefore, will be that the appeal is dismissed. The decree of the Court of first instance will be modified as above set out. The respondent will get his costs.