Mears, C.J.
1. This is an appeal by the plaintiff under Section 10, Letters Patent Act, and arises out of a suit for redemption of a mortgage which was created under a registered instrument dated 30th December 1895.
2. Sheobalak, Sheoratan, Ranjit Ram and Bhagwati Prasad were members of a joint Hindu family and owned a zamindari share consisting of 1 ' anna 15 gandas in mauza Tingrahi. This zamindari share included certain sir plots having an area of 6 bighas 16 biswas. On 20th July 1867 Sheobalak and Sheoratan made a usufructuary mortgage of the zamindari share referred to above (but not the sir lands appertaining to the zamindari) in favour of Mahipal and Sheo Bandhan. On 30th December 1895 Sheobalak and Mt. Ananti who was the. widow of Sheoratan and mother and guardian of Rajit Ram, Bhagwati Prasad and Mt. Atasi executed a usufructuary mortgage of the entire sir lands in favour of Ram Chandra Das for Rs. 140.
3. Under a sale deed dated 20th January 1900 the mortgagees of the zamindari share assigned their rights and interests to Ram Dass, the plaintiff-appellant. On 20th March 1910, Bhikam Chand and Gokul Chand, sons of Ram Chandra Das sold their mortgagee rights in the sir plots together with some other properties to Mahant Anand Gir who was the spiritual preceptor of the defendant Parmanand Gir.
4. The result of the two last-mentioned transactions was that the plaintiff became the assignee of the mortgagee rights in the zamindari and the defendant became the assignee of the mortgagee rights in the sir lands.
5. Sheobalak, Sheoratan and Ranjit Ram having died during the continuance of the joint family, the estate vested in Bhagwati Prasad alone by survivorship. On 2nd June 1913 Bhagwati Prasad sold his equity of redemption in 1 anna 15 gandas zamindari share and also 6 bighas 16 biswas of sir lands to the plaintiff Ram Dass. In consequence of this transaction the rights of the mortgagor and the mortgagee having merged in the same person, Ram Dass became the absolute owner of 1 anna 15 gandas of the zamindari of mouza Tingrahi. He also became the owner of the mortgagor's interest in 6 bighas 16 biswas of sir land which had remained in possession of Mahant Anand Gir by reason of the assignment of the mortgagee rights under the deed dated 30th December 1895.
6. The present suit was commenced by Ram Dass on 24th October 1924 in the Court of the Munsif of Mirzapur and was directed against Mahant Parmanand Gir, the successor-in-title to the estate of Mahant Anand Gir.
7. The plaintiff, as purchaser of the equity of redemption claimed to redeem the mortgage dated 30th December 1895 related to the sir plots. He also claimed Rs. 252 for arrears of rent due from the defendant on the allegation that Bhikam Chand and Gokul Chand had been paying an annual rent of Rs. 28 in respect of the land to the plaintiff and that the payment had been continued by Anand Gir but that no payment had been made since 1322-F corresponding to 1915 A. D. As regards this sum the plaintiff had instituted a suit in the revenue Court against the defendant but the suit was dismissed on the ground that the relation between the parties was not that of landlord and tenant and that the claim for arrears was not therefore cognizable by a Court of revenue.
8. The plaintiff admits that a sum of Rs. 140 is payable to the defendant as the price of redemption but he prays that the said amount be deducted from the sum of Rs. 252 which was due to him and that a decree for the balance be passed in his favour.
9. The suit was contested on the ground that the plaintiff was not entitled to redeem the mortgage or to sue for arrears of rent and that in any case the plaintiff was not entitled to recover arrears for a period of more than three years.
10. Three issues were framed by the Court of first instance and they were decided in favour of the plaintiff. The Court clearly held that the plaintiff was a person having 'any interest in or charge upon the right to redeem the property within the meaning of Section 91 (b), T. P. Act (4 of 1882) and as such was entitled to redeem. The, Court observed that
the question whether any exproprietary rights accrue on such redemption to the original mortgagor or not will be a question between the plaintiff and the original mortgagor, and the defendant can have no right under the law except to get back his money advanced in terms of the deed of mortgage.
11. As to the claim for arrears it observed as follows:
In the deed it is mentioned that the rent of the property transferred is Rs. 28 per annum. The contention of the plaintiff is that this Rs. 28 is the measure of land revenue over the whole patti in the possession and ownership of the mortgagor and this amount had to be paid by the mortgagee to the mortgagor or to any transferee of the mortgagor and that the mortgagee was to benefit himself by the usufruct obtained over and above this Rs. 28 per year....Thus it appears from the conduct of the parties that Rs. 28 was payable to the mortgagor or a transferee of the mortgagor from the original mortgagee under the deed dated 1895.
12. On these findings the plaintiff's claim was decreed and the defendant was directed to pay Rs. 112 to the plaintiff within a month.
13. On appeal the lower appellate Court affirmed the decision of the trial Court. It held that the plaintiff was entitled to redeem and that the suit for redemption could not be defeated by reason of the accrual of an exproprietary tenancy in favour of Bhagwati Prasad:
The plaintiff is the proprietor of the land and he is certainly entitled to redeem the mortgage; if his vendor has got any exproprietary title it is between him and the plaintiff but the defendant cannot make a stand on the rights of Bhagwati. Bhagwati, if he so likes can sue for possession against the plaintiff within six months of his possession.
14. It also upheld the claim for Rs. 252 on the ground that the plaintiff was entitled to recover that amount under Section 76 (c), T. P. Act:
According to Section 76 (c), T. P. Act, he must pay the rent and all public charges out of the income of the property and after payment of such charges he can appropriate the rest of the profits towards his interest. This amount was to be paid to the zamindar. Since 1913 plaintiff has been the zamindar of the plots and the mortgagees were bound to pay that amount to thorn....I think the learned Munsif was justified in taking into account this sum and as the mortgagee did not pay what he was bound to pay to the mortgagor he was entitled to got that amount deducted at the time of the payment of the mortgage-money and if there was any surplus in his favour to get a decree for that against the mortgagee.
15. On appeal a learned Judge of this Court by his decision dated 6th November 1928 overset the decrees of the Courts below and dismissed the plaintiff's suit in its entirety. By an oversight the claim for recovery of Rs. 252 was not gone into.
16. Dealing with the plaintiff's title to redeem under the purchase of the year 1913 the learned Judge observes as follows:
They thus became in 1913 full proprietors. But difficulty has arisen in reference to a further clause of the sale-deed. It purported to transfer to the plaintiffs the sir plots formerly vested in Sheobalak and Sheoratan. This again can only mean that it purported to transfer to them the ex-proprietary or cultivatory rights which remained with the heirs of Sheobalak and Sheoratan subject to the mortgage of 1895 if that was a valid mortgage.
'Now it is by virtue of this latter clause, their purchase of the cultivatory or ex-proprietary rights of the successor-in-interest of the original mortgagors, that they have purported to bring the present suit for redemption of the mortgage of 1895.
'The defendant pleaded that the plaintiffs had no right to institute a suit for redemption at all. He contended that the cultivatory rights remained in Sheobalak and Sheoratan and their successor-in-interest, and did not vest in any way at all in the plaintiffs. The contention appears valid, and, so put, it cannot be really seriously contested by the plaintiffs. In 1913 the transfer by the heirs of Sheobalak and Sheoratan of their exproprietary rights was invalid...Any persons having any interest in the proprietary rights have a right to redeem a mortgage affecting those proprietary rights, but the proposition appears to me to be stated too widely when it says that because a plaintiff had acquired the full proprietary rights, he had therefore a right to redeem a mortgage of merely ex-proprietary rights.
17. The judgment' evidently proceeds upon a misapprehension of facts.
18. When the usufructuary mortgage of the sir plots was executed on 30th December 1895 the Act in force was the N. W. P. Rent Act (12 of 1881 local). Section 7 of the Act provided that
every person who may hereafter lose or part with his proprietary rights in any mahal shall have a right of occupancy in the land held by him as sir in such mahal at the date of such loss or parting, at a rent which shall be four annas in the rupee less than the prevailing rate payable by tenants at will for land of similar quality and with similar advantages.
Persons having such rights of occupancy shall be called 'exproprietary tenants' and shall have all the rights of occupancy tenants.
19. Section 9(2) provided that
no other right of occupancy shall be transferable in execution of a decree or otherwise done by voluntary transfer between persons in favour of whom as cosharers such right originally arose, and to have become by succession cosharers therein.
20. It was held by a Full Bench of this Court in Khiali Ram v. Nathu Lal [1893] l5 All. 219 that 'a right of occupancy' referred to above must not be confounded with 'a right to occupy.' What para. 2, Section 9, Act 12 of 1881 does enact is 'no other right of occupancy shall be transferable, etc.' which is a very different thing from en-acting that 'no other right to occupy shall be transferable.'
Paragraph 2, Section 9. makes all rights of occupancy other than those of tenants at fixed rates absolutely incapable of being transferred except by voluntary transfer between persons in favour of whom as cosharers such right originally arose, or to have become by succession cosharers therein.
21. The transfer of a right to occupy by the execution of a usufructuary mortgage-deed did not therefore offend against the provisions of Section 9 [1894] 16 All. 337 of the Act. It was held in Madho Bharti v. Barti Singh [1894] 16 All. 337 that a zamindar who makes a usufructuary mortgage of his zamindari including his sir land does not so 'lose or part with his proprietary rights' within the meaning of Section 7, Act 12 of 1881 so as to become an exproprietary tenant of his sir land.
22. Under Section 10, Tenancy Act (2 of 1901 local), the proprietor of a mahal or of a part of a mahal became the ex-proprietary tenant of a sir land upon his executing a usufructuary mortgage of the zamindari share or of the sir plots.
23. It ought to be distinctly understood that on 30th December 1895 Sheobalak and Mt. Ananti were the owners in possession of the sir plots 14 in number having a total area of 6 bighas 16 biswas. Upon their usufructuarily mortgaging these plots to Ran Chandra Das, no exproprietary rights arose in their favour under Section 7, N. W. P. Rent Act; (12 of 1880, which was then in force. The exproprietary rights in those plots did not accrue in favour of Bhagwati Prasad till on his executing the sale deed in favour of Ram Dass, appellant, on 2nd June 1913. The exproprietary right accrued in the sir plots by reason of Section 10, Act 2 of 1901 which was then in force, but it did not in any way affect the legality or validity of the usufructuary mortgage which had been created before the passing of that act (see the saving clause in Section 2, Sub-section 4 of the Act). The point is covered by the decision of this Court in Sheo Lal Singh v. Shukhdeo Singh [1909] 31 All. 368. In this case the title of the usufructuary mortgagee under an instrument of 1891 was in issue and it was held that the mortgage having been made in 1894, the provisions of the Agra Tenancy Act of 1901 did not apply and the mortgagor acquired no exproprietary rights in respect of the sir.
24. On 2nd Jane 1913 the defendant was in possession as mortgagee of the zamindari rights in the sir lands. Bhagwati Pra-sad, as the representative of the original mortgagors, was the owner of the equity of redemption in the said plots. He sold the equity of redemption in the said plots to the plaintiff-appellant. It was after the sale, and not before, that he became the exproprietary tenant with reference to the said plots. Under the sale deed, dated 2nd June 1913, Bhagwati Prasad did not transfer his exproprietary rights in the sir plots to the plaintiff nor could the transaction be treated as one purporting
to transfer to the plaintiff the exproprietary or cultivatory rights which remained with the heirs of Sheobilak and Sheoratan subject to the mortgage of 1895 if that was a valid mortgage.
25. The right of usufructuary mortgagee to retain possession of the sir land mortgaged to him before Act 2 of 1901 came into force is not affected by a sale of the zamindari share together with the sir after the enforcement of the aforesaid Act. In such a case the mortgagee continues to be the mortgagee of the sir plots and the right of the exproprietary tenant to recover possession does not arise till his vendee has redeemed the mortgage. The right of the exproprietary tenant must be deemed to be in abeyance |during the continuance of the mortgage. Except in the loose sense the mortgage cannot be said to attach to the exproprietary right. In Sham Das v Batul Bibi [1902] 24 All. 538, where Rajab Ali, a zaminiar, having mortgaged by way of usufructuary mortgage his zamindari together with his sir land, subsequently lost his zamindari rights and became an exproprietary tenant of the sir. It was held that the usufructuary mortgage did not become ineffectual:
When Rajab Ali lost his proprietary rights in the sir, his tenure was changed, no doubt, from that of a proprietary tenure to an exproprietary tenure. Some interest however in the sir lands still remained vested in him; but he had already disposed of the usufruct of the land by the mortgages which he had executed in favour of the defendants. These mortgages, we think, attached to, and bound the estate of the mortgagor in its altered conditions.
26. We are in general agreement with this decision.
27. We are therefore of opinion that the learned Judge of this Court was in error in holding that the plaintiff-appellant was not entitled to redeem the mortgage.
28. We have no doubt that the plaintiff has failed to prove his right to recover Rs. 252. This part of the, case is set out in para. 5 of the plaint. We have examined in detail the two documents dated 30th December 1895 and 20th April 1910. There does not appear to have been any stipulation or agreement between the parties to those documents under which a sum of Rs. 28 was payable annually by the usufructuary mortgagee to the original mortgagor or to his successor-in-interest. In the document of 1895 a sum of Rs. 12 has been shown as rent against five of the plots mortgaged, and a sum of Rs. 16 against the remaining seven plots. The relation between the parties was that of mortgagor and mortgagee. These entries cannot be construed to mean that the mortgagee had thereby agreed to pay those two sums as rent to the mortgagor. There is the usual indemnity clause in the mortgage bond, that in the event of the mortgagee being deprived of his possession or upon his losing the mortgage security, he will be entitled to recover the principal sum with interest at the rate of 2 per cent per annum. This has been construed by the Courts below to mean that this clause, together with entries relating to rent, amounts to an agreement on the part of the mortgagee to pay Rs. 28 annually to the mortgagor after deducting from the usufruct of the property the profits due to him at the, rate of 2 per cent on the principal mortgage money. This is a forced and an unnatural construction of the documents.
29. Section 76 (c), T. P. Act, is not helpful . to the plaintiff-appellant. There is no evidence on the record that this sum of Rs. 28 is the proportionate share of revenue payable for the sir plots mortgaged. We are therefore of opinion that the plaintiff has failed to make out his case for the recovery of Rs. 252.
30. The result is that we allow the appeal in part, modify the decree of this Court and also of the lower Courts by granting the plaintiff a decree for redemption of the mortgage, dated 30th December 1895, upon his depositing in the Court of first instance Rs. 140 to the credit of the defendant-respondent within three months of this date. Let a decree be prepared under Order 34, Rule 8, Civil P.C. The plaintiff's claim for recovery of Rs. 252 is dismissed. Parties to pay and receive costs throughout in proportion to their success and failure.