MUHAMMAD HUSAIN KHAN Vs. HANUMAN

JUDGEMENT

(1.) This appeal arises out of a suit for redemption. The facts may be very shortly stated for the purpose of explaining the question which we have to decide.

(2.) In the years 1898 and 1899 two usufructuary mortgages were made. The property mortgaged was sir plots Later on, after the year 1902, the mortgagor s proprietary rights were sold and purchased by the defendants or some of them or the predecessors of some of them. Subsequently the defendants (or some of them) purchased the mortgagee rights. It is unnecessary to discuss which of the defendants purchased which of the mortgagee rights. Then the present suit was instituted to redeem the mortgage of 1898. The Court of first instance decreed the claim. The lower Appellate Court reversed the decree of the Court of first instance and dismissed the suit. On the case coming before a single Judge of this Court it was referred to a larger Bench.

(3.) The argument in favour of the defendants is that the plaintiff having lost his proprietary right has ceased to have any interest in the property and he cannot, therefore, redeem. It is said that what he mortgaged was his proprietary right in the sir plot. When the proprietary right was sold the right to redeem the mortgage (if any) was transferred to the vendee of the proprietary right. This is the argument. I consider that the contention is not well founded. As soon as the proprietary rights of the mortgagor were sold, he became entitled to the rights which the Tenancy Act gives to an ex-proprietor in respect of his sir land, that is, the right to occupy the sir land at a preferential rent so long as that rent is paid and the statutory conditions fulfilled. The mortgage of 1898 stood between the mortgagor and his right to occupy the sir land as an ex-proprietary tenant and in my opinion he was a person who had an interest in the property within the meaning of Section 91 of the Transfer of Property Act. In my opinion if the mortgagor, or his representative, of the mortgage of 1898 had gone to the original usufructuary mortgagee, and if that usufructuary mortgagee had never parted with his mortgagee rights, the mortgagee would have no answer to the claim for redemption upon payment of the mortgage money. If the original mortgagee would have had no defence to such a suit I cannot see that the purchaser of mortgagee rights, even if be has also acquired the proprietary rights, has any answer to a suit for redemption. I would allow the appeal and restore the decree of the Court of first instance. Tudball, J.