1. Gulzari Lal the plaintiff-appellant in these two appeals, is the mortgagee of one fourth share in two groves. The mortgage was executed in the year 1916 by Bhola Chamar. The mortgaged share has now passed into the possession of the Zamindar by a sale executed by Bhola's widow, Mfc. Umrai, in the year 1920. The plaintiff sues for recovery of his mortgage money by sale, if necessary, of the mortgaged share, against Mt. Umrai and the legal representatives of the Zamindar Bhawani Prasad who is now dead. The suit was resisted by the latter set of defendants. They are the respondents to these appeals. The real question in the appeals is whether it was competent to Bhola to mortgage his share in the groves. The two plots in question were originally his occupancy holding. In the year 1901, long before the mortgage in suit, the Zamindar entered into a formal agreement with him permitting him to convert the plots into groves. This agreement provided that he was to be the owner of one-fourth of the groves and the Zamindar of three-fourths, but reading the deed as a whole his right of ownership was not absolute. It was restricted in various ways. He was, for instance, not at liberty to cut down any green trees. There was a further restriction, and this is the clause which is material for the purpose of this case that he was not entitled to sell the share in the groves except to the Zamindar. There was no prohibition against the groves being mortgaged but the learned District Judge has held that if the right of sale is excluded the right of mortgage must necessarily be excluded also and on this ground he has reversed the Munsiff's decree in favour of the plaintiff and dismissed the suit.
2. Three points have been argued in support of the appeals:
(1) That under the village custom as recorded in wajib-ul-arz grove-holders have a right to transfer their groves.
(2) That the agreement in dispute gives Bhola a full right of ownership in his share in the groves and that this right cannot be cut down by any subsequent restrictions.
(3) That the learned District Judge was wrong in reading into the agreement a prohibition against mortgage which it does not contain.
3. The third plea is in my opinion the important one. This case is not governed by the general custom set out in the wajib-ul-arz but by the conditions of the contract entered into between the parties.
4. The Zamindar was not obliged to give Bhola leave to plant trees and if he did give leave, it was perfectly open to him to make that permission subject to conditions which Bhola himself accepted and which were embodied in a binding agreement.
5. As regards the second plea, although the word 'malik' ordinarily connotes full ownership, it is a cardinal principle of construction that the deed must be read as a whole and that it must be read as far as possible so as to make the different clauses which it contains consistent with each other. If the dead is read as a whole it is quite clear that it was not intended to give Bhola a full right of ownership. The agreement regarding the sale of the share is very similar to an agreement giving the Zamindar a right of pre-emption and such agreements have been held in a very recent case to be binding even on the successors of the parties who entered into them : Basdeo Rai v. Jhagru Rai A.I.R. 1924 All. 400.
6. The third plea has much more force and in my opinion the appellant is entitled to succeed on it. The Court must construe the contract which the parties have made and is not at liberty to make a fresh contract on their behalf because it thinks that they might have intended to do certain things which they hive not expressed in their written agreement. Sale and mortgage are two quite different things and prohibition against one does not necessarily import prohibition against the other. In the present case the object of the agreement may have been and probably was to prevent Bhola's share passing out and out into the hands of a stranger. A sale to an outsider would necessarily have this effect. The same effect need not follow from a mortgage since if the mortgagee brings the property to sale it will always be open to the Zamindar to purchase it. In any case construing the contract as it stands, there is nothing in it to render the mortgage executed by Bhola illegal.
7. It has been argued on behalf of the respondents that Bhola remained an occupancy tenant notwithstanding the agreement as to the planting of the groves but it is I think impossible to maintain this view since the decision in Jaleshar Sahu v. Raj Mangal A.I.R. 1921 All. 168.
8. I therefore allow the appeals and setting aside the decree of the Court below, restore that of the trial Court with costs throughout, including in this Court, fees on the higher scale.