John Stanley, Kt., C.J. and Banerji, J.
1. This appeal arises out of a suit brought by the plaintiff appellant for arrears of rent against Sukhdeo Singh, respondent. It appears that in 1894 Ram Lai Singh the father of Sukhdeo Singh, executed a usufructuary mortgage of his zamindari and air lands in favour of Sheo Lal, plaintiff, and Rai Madan Makund, defendant. On the day following that of the mortgage 'Sukhdeo Singh executed a kabuliat in favour of the mortgagees in respect of the sir lands undertaking to pay a rent of Rs. 112 per annum for the occupation of it. As Rai Madan Makund did not join in the suit the plaintiff claimed his share of the rent in accordance with the provisions of Sub-section (3) of Section 194 of the Agra Tenancy Act. The court of first instance decreed the claim but the lower appellate court modified that decree, holding that the plaintiff was not entitled to the rent mentioned in the kabuliat but only to such rent as an exproprietary tenant was liable to pay. This decree has been affirmed by the learned Judge of (his Court who heard an appeal from the decision of the lower appellate court. Hence this appeal under the Letters Patent.
2. The learned Judge of this Court was of opinion that the defendant, who is joint with his father Ram Lal Singh, the mortgagor, had acquired exproprietary rights in regard to the sir land under Section 7 of Act No. XII of 1881 and that consequently he was not liable to pay any higher rent than that which under that section an exproprietary tenant is liable to pay. This view is opposed to the Full Bench ruling in Madho Bharti v. Barti Singh (1894) I.L.R. 16 All. 337. In that case it was held that a zamiudar who makes a usufructuary mortgage of his zamindari including his sir land does not so lose or part with his proprietary rights within the meaning of Section 7 of Act No, XII of 1881, as to become an exproprietary tenant of his sir land. This ruling does not appear to have been brought to the notice of the learned Judge of this Court. As the usufructuary mortgage in favour of the plaintiff and Rai Madan Makund was made in 1894, the provisions of the Agra Tenancy Act of 1901 do not apply, and the mortgagor acquired no exproprietary rights in regard to the sir lands. The defendant who executed a kabuliat agreeing to pay rent at the rate of Rs. 112 a year, was liable to pay the rent at that rate. The Court of first instance was therefore right in decreeing the plaintiff's claim. We allow the appeal, set aside the decrees of this Court and of the lower appellate court and restore that of the court of first instance with costs in all courts.