- (1.) THE facts giving rise to this revision are as below: - Sheo Bux brought a suit against Bhura and Gorkha sons of Sugan on 4.6.49 in the Court of the Nazim (Assistant Collector) Hindaun with the allegations that Hakku brother of the plaintiff mortgaged the land in dispute (khasra Nos. 422, 423 and 424 measuring 4 bighas 3 biswas Barani in village Minagavda) in lieu of Rs. 80/-on Jeth Sudi 10, Svt. 1990 in favour of Sugan deceased father of the defendants. It was further alleged in the plaint that the defendants were requested to rede m the land on numerous occasions but they refused to comply with this request. THE defendants denied almost every allegation of the plaint including the factum of the mortgage itself and the relationship between Hakku and the plaintiff. THE trial court framed the following issues : - (1) Whether Hakku mortgaged the land in dispute with the father of the defendants for Rs. 80/- in Svt. 1990 ? If so in what form and for what period was the mortgage effected? (2) Whether the plaintiff is entitled to redeem the land? (3) To what relief is the plaintiff entitled? THE trial court without examining the evidence led by the parties on these issues or recording any findings on any one of them rejected the application on 17.10.55 with the following observation : - "This application for redemption can be summarily rejected on the score that any transfer made in Svt. 1990 in settled village was void under sec. 24 of the Jaipur Tenancy Rules for Chakband villages issued under notification, dated 23.2.1931. THEse Rules remained in force till 1945. This objection goes to the root of the case. It is needless to enter into discussion about the merits and the facts of the case in detail. A transaction which is void ab initio does not entail a right to redeem. THE application is therefore, summarily rejected." THE plaintiff went up in appeal before the Additional Commissioner who agreed with the view of the trial court and rejected the appeal. Hence this revision before us.
(2.) WE have heard the learned counsel for parties and have gone through the record as well. The Tenancy Rules for Chakbandi Villages, 1931 issued under notification No. 18818 dated 23 12-1931 have also been examined by us. These Rules are 26 in number and are divided under the following heads : - (A) Licenses Rules 1 and 2. (B) Extinction of tenancy. Rules 3, 4 and 5. (C) Ejectment. Rules 6 to 10. (D) Surrender. Rules 11 and 12. (E) Abandonment. Rules 13 to 15. (F) Abatement of rent. Rule 16. (G) Appeals. Rule 17. (H) Transfer. Rules 18 to 24. (I) General. Rules 25 and 26. The portion dealing with transfer allows a tenant the right of subletting under certain restrictions and Rule 24 which is relevant for purpose of this case lays down that "Every transfer other than a sub-lease made in accordance with these rules shall be void." It has been admitted by the applicant before us that the alleged mortgage was created after the enforcement of these rules in 1932-33 and prior to the enforcement of the Jaipur Tenancy Act, 1945. The questions therefore, that comes for determination before us is as to whether the applicant can seek redemption of the alleged mortgage ? If not, what other remedy is open to him. ? As observed by their Lordships of the Allahabad High Court in a Full Bench case - ..............A.I.R. 1930 Allahabad 1 there is a clear distinction between an agreement which may be forbidden by law and one which is merely declared to be void. In the former case, the Legislature penalises it or prohibits it. In the latter case, it merely refuses to give effect to it. If a void contract has been carried out and consideration has passed, the promisor may not in equity be allowed to go back upon it without restoring the benefit which he has received, but if the promisee goes to the court to enforce it he would receive no help from a court of law. As is clear from the 1931 Rules the transfer of tenancy rights was not actually forbidden but was simply declared to be void. The remedy that is available to the mortgagor in such cases has been the subject of judicial pronouncement in a series of cases decided by the Allahabad High Court. In AIR 1944 Allahabad 25 (Ghassu vs. Bahu) a Full Bench held that the relationship which comes into existence as a result of the mortgagee of an occupancy holding and its possession being transferred to the mortgagee, though not strictly speaking that of a mortgagor, and of a mortgagee, is analogous to that relationship and the action which is raised by the mortgagor to recover possession of the holding on payment of money due to the mortgagee, though not strictly in the nature of a redemption, is analogous to a redemption suit. The learned counsel for the applicant has relied upon this decision "before us. This decision was [examined by a Full Bench of the same High Court in AIR 1950, Allahabad 604. The previous decision was of a bench consisting of three judges and this decision is of a bench consisting of five judges. On the point at issue before us, the latter decision did not accept the correctness of the law as enunciated in the earlier decision. It was held that to allow redemption to come into force there ought to be a valid mortgage first and the scope of redemption cannot be extended to a suit for redemption not simpliciter but analogous thereto. The scope of sec. 12 of the Agriculturists Relief Act dealing with redemption was examined at length in this case and it was pointed out that a right to redeem as envisaged in this section could not possibly arise in respect of a mortgage. It was further pointed out that in an action for redemption there ought to be the principal money which had become due and which could not be the case of the mortgage was void. It was further held that although the mortgagor is entitled to seek the relief for possession against the mortgagee in a properly constituted suit in a civil court it is not open to him to obtain that relief by redemption and that such a relief could be sought against the mortgagee in all cases whether he had been in possession for over 12 years or for any period short of it as the mortgagee can prescribe no more that the mortgagees interest. This decision clearly overrules the previous Full Bench decision in Ghassu vs. Babu. The subsequent decision of that High Court have uniformly followed the latter decision. AIR 1952 All. 604 ; A I.R. 1952 All., 544 and AIR 1953 All 241. The learned counsel for the applicant could site no case decided after AIR 1950 All 604 by the Allahabad High Court wherein this decision may not have been followed. The position that clearly emerges from these authorities is that Ghassu's case which was decided by the Allahabad High Court in 1914 did lay down that a mortgagor in case of a void mortgage could bring an action under sec. 12 of the U. P. Agriculturists Relief Act for redemption of the state as the transaction could be regarded as analogous to a mortgage The soundness of this view was however examined again by that High Court in a larger Full Bench case decided in 1950 and it was clearly pointed out that the decision in Ghassu's case did not lay down the law correctly and that a mortgagor in case of a void mortgage could not seek redemption though he could bring an action for recovery of possession against the mortgagee. Thereafter this view has been uniformly and consistently held by the High Court in a number of decisions. It will be clear from the foregoing that in all the cases discussed above, the question involved related to the interpretation and scope of sec. 12 of the U. P. Agriculturists Relief Act, 1934. This section confers upon the Collector if the principal money secured does not exceed Rs. 500/-, or if it does, upon the civil court, jurisdiction of a special character as laid down in sec. 10 of the Act. The word "Court" used in sec. 10 includes the Collector and means a civil court as defined in sec. 2(5). The limited jurisdiction conferred upon the Collector to entertain an application under sec. 12 cannot have the effect of making him a civil court for all purposes. It was on this ground that their Lordships of the Allahabad High Court laid down "there is neither reason nor principle in widening the scope of sec. 12 to cases other than those which fall strictly within the purview of that section." The present case being for redemption of mortgage which, was void at the time of its creation cannot be regarded as being similar to one under sec. 12 of the U. P. Agriculturists Act, 1934. A suit for redemption is in essence a suit for recovery of possession. The following decision of the various High Courts can be referred to in this connection : - In AIR 1918 Allahabad 229(1) the plaintiff purported to make a usufructuary mortgage of an occupancy tenancy which was illegal having regard to the provisions of Sec. 20 Agra Tenancy Act, 1901. He then brought a suit to redeem the property, it was held by a Division Bench of the High Court that the suit was maintainable and that the plaintiff was entitled to get back the property on payment of the mortgage money. It was further observed by their Lordships that "the plaintiff very honestly goes in offering to pay the mortgage money. In our opinion, he is clearly entitled to get possession on so doing." In AIR 1923 Allahabad 191 Mst. Lagha bad an occupancy holding which she mortgaged with possession in favour of the defendant who remained in possession of the holding. A suit was brought for possession of the occupancy holding and the defence was that the mortgage was invalid. It was observed that "by allowing the plaintiff to get back possession of the holding the court is not giving effect to the mortgage or recognising its validity. It is merely restoring to the plaintiffs the occupancy holding which was and still is his and ousting a person who had taken an illegal possession under a permissive title." In A.I.R. 1927 Alld. 311, a suit was brought for redemption of a mortgage which was effected by means of an unregistered deed executed 19 years prior to the institution of the suit. The defence of the suit was a denial of the mortgage and an assertion by the defendants that they were the original tenants of the holding in dispute and were not in possession as mortgagees, a defence which has striking similarity with the defence of the present case. In that case it was argued on behalf of the defendants that the alleged mortgage being invalid as the property was an occupancy holding the transfer of which was prohibited by law and as the mortgage was effected by an unregistered instrument the possession of the defendants could not be held to be in the capacity of mortgagees. Iqbal Ahmad J. observed that 'a mortgage of an occupancy holding is no doubt not permitted by Jaw, but by entering into possession as mortgagees of the holding in dispute and by continuing in such possession for more than 12 years, the defendants could only prescribe a title for the limited interest of usufructuary mortgage. This was the view taken in the case of N. Appamma vs. Venkataswami (A.I.R. 1924 Madras 292). If the plaintiff had brought a suit for possession of the holding in dispute against the defendants within 12 years from the date of the execution of the mortgage the plaintiffs could have claimed an unconditional decree for possession on the ground that the mortgage being of an occupancy holding was void in law. In that case the defendant could not have set up the mortgage as a bar to the plaintiff's claim, but by continuing in possession for more than 12 years as mortgagees, the defendants have prescribed a title to the mortgagee's right and it is this acquisition of the prescriptive title that has vested in the defendants the rights of a mortgagee......It is, as it were, that by the continuance of the defendant's possession for more than 12 years as usufructuary mortgagees, there came into existence a legally operative mortgage which the plaintiffs must redeem as a condition precedent to a decree for possession of the holding in dispute." In AIR 1936 Patna 63, the plaintiff purchased the property in dispute from the original occupancy tenant who had previously mortgaged the property to one of the co-sharer landlords who was the respondent in the High Court. The plaintiff paid the mortgage money in the court and brought an action for possession subject to redemption. The trial court gave judgment for the plaintiff. The first appellate court reversed the decree of the trial court and one of the points involved in that case was whether in case of an invalid mortgage an action for redemption could be brought or not ? The argument advanced in that case was that there was no mortgage for the plaintiff to redeem and as it was an action for redemption and not in substance an action for possession, the action must in any event fail. His lordship observed thus: "It would be somewhat astounding to me if I had to come to the conclusion that the law of this country is such as to prevent a plaintiff in the circumstances such as the present, from succeeding where in fact he has claimed possession subject to redemption, merely on the ground that it was in substance an action for redemption. I need only refer in this connection to the decision in 19 C.L J. 532(1). That a decision of the Calcutta High Court and Harrington J. in delivering the judgment of the court, a judgment which was affirmed by the divisional court, made this statement in answer to the argument addressed to him. It appears to me that a suit for possession on redeeming a usufructuary mortgage is in substance a suit for possession of the land......and I say it will be in my judgment shocking to have come to a contrary conclusion in a case of this kind where all the justice of the case is on the side of the plaintiff who comes into court offering to redeem the mortgage. In AIR 1935 Allahabad 578, the mortgage was through an unregistered deed and a suit for possession of the property by redemption of a usufructuary mortgage is in substance a suit for possession for immoveable property. Though a suit for redemption could not lie yet there is nothing against the plaintiff claiming a decree for possession if he can prove his title independently of the mortgage and where the plaintiff proves it the mortgage being invalid, the plaintiff is entitled to possession over the property and as the defendants in that case had been in possession for more than 12 years as a usufructuary mortgagee, they must be deemed to have acquired mortgagee's rights and thus there comes into existence a legally operative mortgage which the plaintiff must redeem as a condition precedent to a decree for possession. In AIR 1914 Calcutta 894, the appellants contention was that the mortgage being void the plaintiff cannot succeed in bis action because there was no mortgage in law which he was entitled to redeem. It was observed by their Lordships that a suit for possession on redeeming a usufructuary mortgage is in substance a suit for possession of the land. If the plaintiff establishes his title and the only answer the defendant has is that the mortgage is void in point of law still nevertheless the plaintiff would be entitled to get the land, because the defendant on his own saying has no title, whatsoever to retain possession of the land. It can be easily deduced from the observations that in case where the mortgagee has been in possession for more than 12 years, as in the present case, there comes into existence a legally operative mortgage and that mortgagee acquires by prescription the rights of a mortgagee. The mortgagor is therefore, entitled to redeem the property, as a suit for redemption on payment of the mortgage money is in essence a suit for recovery of possession. We, therefore, bold that the decision of the lower courts dismissing the suit are clearly wrong and untenable. We would, therefore, allow this revision, set aside the orders of the lower courts and remand the case back to the trial court with the direction that it be proceeded with further and determined in accordance with law.;