- (1.) This is a plaintiff s revision under Section 115, Civil P.C. The applicant applied under Section 12, Agriculturists Relief Act, for redemption of two usufructuary mortgages, of which one was executed on 16th March 1897 for Rs. 50 and the other was executed on 12th August 1897 for Rs. 40. The property which was the subject of each of these two mortgages consisted in plots of an occupancy holding. The Assistant Collector held that plots of an occupancy holding could not legally be mortgaged and the Court had, therefore, no jurisdiction to entertain the application under Section 12, Agriculturists Relief Act. There was an appeal to the Civil Judge, but the appeal was dismissed. When the revision first came before me on 18th March 1943, it was contended by learned Counsel for the applicant that on the assumption that the two mortgages in question were not legally competent the opposite party had nevertheless prescribed for the status of usufructuary mortgagees. I accordingly sent down the following issue to the lower appellate Court: Whether the defendants-opposite party have by prescription acquired the status of usufructuary mortgagees in the holdings in suit
(2.) The finding which has been returned to this Court is that the opposite party have by prescription acquired the limited "right to occupy" the holdings in suit until the money advanced by them is paid off, but have not acquired the right of mortgagees of the occupancy holding. It is conceded that Section 12, Agriculturists Relief Act, contemplates a valid e mortgage as recognised by law. The mortgage deeds in question were executed in 1897, when Act 12 of 1881 was in force. The provisions of the first two paragraphs of Section 9 of that Act read as follows: The right of tenants at fixed rates may devolve by succession or be transferred. No other right of occupancy shall be transferable in execution of a decree or otherwise than by voluntary transfer between persons in favour of whom as cosharers such right originally arose or who have become by succession cosharers therein.
(3.) In Khiali Ram v. Nathu Lal ( 93) 15 All. 219 it was held by a Full Bench of six Judges that an exproprietary tenant was competent to sub-let the whole or any part of his occupancy holding and such a i sub-letting was not forbidden by Section 9 of Act 12 of 1881. At page 229 the learned Judges say: It has recently been decided, and we think rightly, in Kbamani Ram v. Sundar ( 93) 1893 A.W.N. 9 by the Board of Revenue, North-Western Provinces of Oudh, that although a tenant with a right of occupancy, other than a tenant at a fixed rate, cannot legally transfer his rights of occupancy, he can sub-let the right to cultivate the land comprised in his occupancy holding, as such a sub-letting does not profess to be a transfer of the right of occupancy and is not in contravention of Section 9 of Act 12 of 1881.;