Henry Richards, C.J. and Pramada Charan Banerji, J.
1. This appeal arises out of a suit brought by the plaintiff to recover possession of certain properly which until recently at least formed an occupancy holding. The facts have been ascertained and may very shortly be stated. Prior to the passing of the present Tenancy Act one Faqira, father of Mithu, was an occupancy tenant. He purported to make a usufructuary mortgage of the occupancy holding in favour of Chhiddu or his predecessor in title. Some time afterwards the occupancy tenant purported to relinquish his occupancy holding in favour of the zamindar, the plaintiff. The plaintiff accordingly claims that the tenancy has come to an end and that he is entitled as zamindar to resume possession. It has been found that the mortgagee was 'responsible for the rent.' We take this to mean that as between the mortgagor and the mortgagee, the mortgagor did not intend to pay the rent out of his own pocket. It cannot mean more than this, because the zamindar was not legally bound to accept the mortgagee as his tenant by virtue of the usufructuary mortgage. It has also been found that Mithu, when surrendering his tenancy, did not acquire 'any collateral advantage.' We take this to mean that it was not proved that there was any consideration for the relinquishment-that is to say, he did not receive a monetary consideration nor was he promised a now letting of the land or the letting of some other land in its place. The whole case has proceeded Upon the basis that the zamindar (the plaintiff) was aware of the fact that there was a mortgage. There cannot be the least doubt that 'if the tenant's interest in land comprised in an occupancy holding was such that it could be legally mortgaged, the tenant, having made the mortgage, could not do any act which would prejudice the security which he pledged to the mortgagee. Further, there can be no doubt that in such a case, if the landlord knew that the tenancy had been pledged he could not accept a surrender of the tenancy. If he did so, he would be making himself a party to the fraudulent transaction of the mortgagor. The mortgagor's action in surrendering his tenancy after he had mortgaged it would undoubtedly be a fraud in equity. The only difficulty which arises in this case is due to the provisions of the Tenancy Act of 1881 and the ruling of this Court thereon. This Court had held that while an occupancy tenant could not confer any 'rights of occupancy' upon his mortgagee nevertheless he could give the mortgagee a right to take possession and hold the land. The question can never arise under the present Tenancy Act, because the provisions of the old Act were amended and now it is settled law that a mortgage of, or attempt to mortgage, an occupancy holding is absolutely null and void, We think that, once we accept the proposition that an occupancy tenant under the Act of 1881, could confer some right upon his mortgagee, the principle Which we have mentioned in the earlier part of our judgement at once applies, namely, that the mortgagor cannot, without committing a fraud, do anything which will prejudice the rights of his mortgagee, and that the zamindar once he knows of the existence of the mortgage cannot validly take a surrender from the tenant. The learned Judge of this Court refers to the possible trouble and expense which the tenant might suffer by reason of the fact that he might have to defend a suit or suits for rent. This is a matter which we do not think can be taken into consideration. The tenant ought to have considered the possibility of his suffering any of those things at the time he made the mortgage. We allow the appeal, set aside the decree of the learned Judge of this Court and restore the decree of the lower appellate court.