1. The plaintiff-appellants brought the suit out of which this appeal has arisen for redemption of certain occupancy lands held by the defendants under a mortgage deed, dated 23rd April 1885, executed by Bhawani, who was the occupancy tenant. The appellants claim to be the collateral relatives of Bhawani, who died issueless and without leaving a widow or any heir nearer than the plaintiffs. It was pleaded in defence that the plaintiffs were not joint with Bhawani in cultivation of the holdings at any time before the mortgage, and being collateral heirs they could not, and did not, inherit the occupancy rights belonging to Bhawani. The Courts below have found concurrently in favour of the defendants. It must, therefore, be accepted as a fact that the plaintiffs were not the heirs of Bhawani as regards his right of occupancy in the lands in suit. It is, however, urged on their behalf that the plaintiffs have been proved to be joint with Bhawani in the cultivation of another holding of nine biswas; but Section 9,. Act 12 of 1881, makes collateral relatives of a deceased occupancy tenant his heirs only if they shared in the cultivation of the particular holding in question. This being so, the plaintiff's contention must be rejected.
2. It is next argued that the defendants, who entered into possession as mortgagees, cannot now claim higher rights and repudiate the right of the mortgagor or his heirs. The contention is too widely put. A mortgagee cannot deny the title of his mortgagor on the date of the mortgage. It is, however, open to him to assert that on the death of the mortgagor persons who are his heirs under the Hindu Law did not succeed to his occupancy rights in accordance with special rules of succession laid down in Act 12 of 1881. This contention should also be rejected.
3. No other argument has been addressed to me. This appeal fails and is dismissed with costs.