GAURI DATT PANDEY Vs. BANDHU PANDEY

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-appellant against the defendant-respondent for damages. The plaintiff is mortgagee under a deed dated 8 March 1916 wherein the mortgagor purported to give with possession two properties, one an occupancy tenancy and the other a grove. He asked damages because his peaceful occupation of the grove has been interfered with by his mortgagor.

(2.) Both the lower Courts have dismissed the suit on the ground that it was unlawful for the mortgagor to agree to the mortgagee having possession of his occupancy holding as security for the land. It may be mentioned that the amount advanced was secured by the mortgage of both properties and was not divided so as to show what amount was secured by possession of one property and what by possession of the other property.

(3.) The correctness of the decision of the lower Courts has been contested in this appeal on various grounds. One ground is that the mortgage as a whole can only be deemed unlawful by invocation of Secs.23 and 24, Contract Act, and that the Contract Act does not apply to transfers. It appears to me that it is too late in the day to take up the position that the principles of the Contract Act are not to be applied to transfers. The fact is that the Transfer of Property Act does not deal with such matters as good consideration, fraud, misrepresentation and it seems to show that the Act assumed the principles of the Contract Act, being applicable. Indeed Section 4, T.P. Act, provides that the chapters and sections of the Transfer of Property Act which relate to contracts shall be taken as part of the Contract Act of 1872, a provision which suggests that the Transfer of Property Act was to be read in the light of the Contract Act. The appellant's counsel has endeavoured to draw a distinction between a contract, which has still to be executed, and a transfer which has taken full effect. Some such distinction was drawn by Richards, C.J., in the case of Rajendra Prasad V/s. Ram Jatan Rai [1917] 39 All. 539, but this is in effect to hold that a contract, which is void because it is forbidden by law, becomes valid if you act according to the contract. Such a position appears to me indefensible. Lastly the appellant's counsel contests the position that the mortgage of an occupancy holding can be regarded as unlawful or forbidden by law. He admits that there have been certain decisions which suggest this, but he would distinguish them on one or other grounds. I do not consider that they can be distinguished. They are undoubtedly decisions that such a mortgage is unlawful and forbidden by law. The question is whether I am bound to follow them. I can find no decision of a Full Bench to this effect. There is the case of Har Prasad Tewari V/s. Sheogobind Tewari A.I.R. 1922 All. 134, which held that the entire contract of mortgage was void where an occupancy holding was mortgaged. It purported to follow the case of Bhawani Prasad V/s. Ghulam Muhammad [1896] 18 All. 121. Again there is the later decision of Sital Rai V/s. Ram Khelawan Pandey . On the other hand, there is a decision already referred to Rajendra Prasad V/s. Ram Jatan Rai [1917] 39 All. 539, which in effect decided that a transfer of an occupancy holding by a mortgage was not unlawful but merely inoperative so far as it disposed of the holding.