1. The contention of the applicant in this case is that, whether he had or had not acquired actual possession under his purchase of June 1877, the ownership of the land had, in fact, passed to him, and that being owner of the land he was owner of the landlord's moiety of the crops as it was cut, so that there was nothing of the mortgagor's (Datar's) which could be attached by Patankar in execution of his old money decree against Datar. For the opponent it is said that Datar, being allowed to remain in possession after the time limited for payment of the mortgage money and even after the sale, was justified in cultivating the land directly or by the mediation of his tenants; that he thus became entitled to the emblements, notwithstanding an intermediate sale followed even by his dispossession as to the land; and that the crops being thus his property, or so far as they were his property in the hands of the tenants, were subject to his creditor Patankar's attachment.
2. No case has been cited to us in which the ordinary rule as to emblements has been applied to the case of a mortgagor retaining possession after the time had expired which had been allowed to him for payment of the sum due on account of the mortgage. His position, being that of a person acquainted with the imperfection of his title, and one entirely of his own choosing, seems to us to fall under quite a different principle from that of the tenant-at-will cultivating on a reasonable expectation of reaping what he has sown, or of a holder whose right is put an end to by a wholly uncertain event. If, therefore, possession was acquired under his execution purchase by the applicant, there was, we think, no residual right left to Datar on which Patankar's execution could operate.
3. The Subordinate Judge has proceeded, however, on the ground that the applicant had not, in fact, acquired possession. It is now stated that the lands were in part cultivated by Datar himself; but the averment in the applicant's affidavit, that they were wholly let to tenants, is supported by the language of the Subordinate Judge, and has not been contradicted by any counter-averment. We must take it, therefore, as a fact that the lands were occupied by tenants, who appear to have held on terms of giving to Datar one moiety of the crops. This right vested in Datar, it was contended, was separable from his ownership of the land but though it may be conceived of as separate, it was, in our opinion, distinctly a part of Datar's right, title, and interest which were sold in execution. Eights subsist only as between persons, and a relation between a landlord and tenant is a right in the land, to which it relates, vested in him who may benefit by it. The applicant had, therefore, acquired the right to one-half of the crops by his purchase. But it is said by the Subordinate Judge he had left this right, by not taking possession, in the enjoyment of Datar; and, notwithstanding any personal obligations subsisting between them, Datar became possessor of a moiety of the crops at the moment of their severance with an ownership that would enable him to sell them, and, therefore, enabled his creditor to seize' them.
4. As to this, it appears to us that while the crops were in the hands of the tenants they were held subject to a lien for the rent or share due to the landlord Datar. But this lien, arising entirely from his position towards the tenants in relation to the land, was apart of his right, title and interest in the land which had passed by his purchase to the applicant, and could be asserted by him so long as the crops had not been carried away or come into the possession of purchasers for value from the tenants or from Datar. Datar, though tenants without notice might have been exonerated by delivery of the landlord's share to him, was not really owner of the crops, as they had not been taken away by him, and an appropriation in the fullest sense was necessary to make them, or a moiety of them, his, in spite of the right, as against him, vested in the Land Mortgage Bank. The Bank having, in virtue of its proprietorship, succeeded to the lien before it had ceased to be a lien, had not done anything which by deceiving or misleading Patankar had given him a right to take the property as if it had really been that of Datar.
5. We must, therefore, set aside the order of the Subordinate Judge, and direct the removal of Patankar's attachment, with all costs on opponent.