Lawrence Jenkins, C.J.
1. The occasion of this suit is the execution of a document described as an Opan?Patra, as a result of which the defendants claim that there was a resignation of the land in auit by defendant No. 2 to defendant No. 1 within the meaning of Section 10 of the Khoti Act.
2. The lower appellate Court has decided in the plaintiff's favour and in accordance with the prayer in the plaint, has declared that the document is invalid as against the plaintiff.
3. The Advocate-General contends that the suit was based upon the allegation that there was an agreement to mortgage and he asks us to dismiss the suit on the ground that this agreement to mortgage has not been established, the lower appellate Court having held as a fact that it was not proved.
4. The relative positions of the parties do not geem to have been very clearly defined at the outset and this probably accounts for the somewhat uncertain course taken by this suit. But the result of the decision by the lower appellate Court seems to be that it has been proved that the right of transfer had been exercised in respect of the land independently of the Khot at some time within the period of thirty years next previous to the commencement of the revenue year 1865; and that as a result the occupancy rights were transferable under the saving provision in Section 9 of the Khoti Act. It was, however, held that the transfer was bad by reason of Section 53 of the Transfer of Property Act.
5. The conclusion to which we come is that the occupancy rights have not been proved to be transferable; for, the transactions on which reliance is placed, cannot, consistently with the decision in Yesa bin Rama v. Sakharatn I L R (1905) 30 Bom. 290 : 7 Bom. L.R. 941 be deemed to be an exercise of the right of transfer. It necessarily follows that Section 53 of the Transfer of Property Act has nothing to do with this case and in our opinion the suit turns upon whether or not the Opan-Patra was in truth a resignation within the meaning of Section 10 of the Khoti Act.
6. It has already been held by this Bench in Ramchandra v. Duttatraya (1907) 9 Bom. L.R. 820 that when one transfers land to another on a sale-deed, he cannot, according to the ordinary usage of language, be said to have resigned the land. And though it is true that the consent of the Khot is not necessary to a resignation, still the resignation must be made to the Khot and it is only to the Khot that the resignation can be made. As to whether or not a particular transaction is a resignation to the Khot must depend upon the circumstances of each case; and it is found here by the lower appellate Court that there are facts which negative the view that there was a resignation to the Khot. We think we ought not to dissent from that view. Therefore, the transaction was not a resignation, and, if not a resignation, it must have been an attempt to transfer the occupancy tenant's rights. But the occupancy tenant?s rights, according to the view we have already expressed were not transferable and the result is that so far as the plaintiff claims as a mortgagee he is in no way damnified by what has been done, while as a simple contract creditor he cannot claim any relief seeing that Section 53 of the Transfer of Property Act is not applicable. The result then is that, in our opinion, there was not a resignation of the land. The plaintiff, therefore, has not been damnified. He accordingly is not entitled to the declaration or relief prayed for by him.
7. The suit, therefore, must be dismissed. But at the same time it is impossible to overlook the fact that the defendants have throughout maintained that this was a resignation and had they succeeded, then the rights of the plaintiff would have been most materially prejudiced. The truth is that the plaintiff has been premature, but he has secured the benefit of the finding which safe?guards his position and in the circumstances we think the proper order as to costs is that each party should bear his own costs throughout.