1. This appeal arises out of a suit brought by the appellant to recover from the respondent arrears of rent. The respondent is an, occupancy tenant. On the 21st of October 1902 he made a usufructuary mortgage of his occupancy holding to the plaintiff appellant, and then executed a kabuliat undertaking to pay rent for the mortgaged land. It is on the strength of this kabuliat that the present suit was brought. The suit was resisted upon the ground that under the provisions of the Agra Tenancy Act, No. II of 1901, the mortgage was void and that the plaintiff had no title to sue for rent. Both the Courts below have sustained this defence. The plaintiff appeals.
2. It is contended on his behalf that the mortgage made by the defendant respondent is not absolutely void, but is only voidable at the instance of the landlord, and that it is not open to the defendant to question its validity. In support of this contention reliance is placed upon the provisions of Section 31 of the Act. It is clear from the provisions of Sections 20 and 21 that a transfer of his holding or of any interest therein by an occupancy tenant is wholly forbidden, except in the case of a sub-lease as provided in the Act. The object of the Legislature manifestly was to declare that certain rulings of this Court in which it was held that an occupancy tenant could mortgage his right to occupy should no longer have any binding effect. The usufructuary mortgage in the present instance was therefore void under the provisions of Section 21. It is true that Section 31 lays down that 'every sub-lease or other transfer made by a tenant in contravention of the provisions of the Act shall be 'voidable' at the instance of the landholder, but it seems to me that the word 'voidable' was used, not in the sense in which that term is ordinarily used in law as distinguished from an agreement which is absolutely void, but in the sense that a transfer made in contravention of the provisions of Section 21 may be avoided by the landholder in the manner provided in the section. It is also true that the Tenancy Act prescribes a limitation of one year from the date of the transfer for a suit for the cancellation of a transfer. But it may be that what the Legislature contemplated was that in the case of a landholder he might accept and recognize the transfer, but if ho wished to repudiate it, he must do so at an early date and bring his suit within one year of the transfer. That, however, does not raise the inference that as against the transferor or any other person the transfer shall be deemed to be binding after the expiry of one year and even when the landholder has not chosen to avoid it. It is manifest from the scope of Sections 20 and 21 that they were enacted in the interest as much of the tenant as of the landholder, and that the Legislature thought it fit to absolutely forbid a transfer by an occupancy tenant of his interests in his holding. That being so, if the mortgage in favour of the plaintiff be held to be valid, the object of the law would be defeated. As the agreement between the plaintiff and the defendant is of a nature, which, if permitted, would defeat the provisions of the Tenancy Act, it is unlawful within the meaning of Section 23 of the Contract Act and is void. The object of the suit brought by the plaintiff is to enforce the mortgage made in his favour. If he were allowed to carry out that object, the provisions of the law, as enacted in Section 21, would be rendered nugatory. In Harnandan Rai v. Nakchedi Rai Weekly Notes, 1906, p. 302 a usufructuary mortgagee who brought a suit for possession was held not entitled to do so, as Section 20 of the Act forbids the transfer of the interest held by occupancy tenants except under circumstances which do not exist in this case.'Probably the learned Judges meant to refer to Section 21. In Banmali Pande v. Bisheshar Singh (1906) I.L.R., 29 All., 129 a usufructuary mortgagee of an occupancy holding, whose mortgage was executed after the passing of the Tenancy Act, sued to redeem a prior mortgage. It was held that the mortgage under which the plaintiff claimed was invalid and unlawful, and that he had acquired no right under it so as to entitle him to redeem the prior mortgage. I may also refer to the decision of our brother Richards in Madan Lal v. Muhammad Ali Nasir Khan (1908) I.L.R., 28 All., 698 which was affirmed on appeal under Section 10 of the Letters Patent on the 13th of December 1906, and which was cited with approbation in the case of Banmali Pande v. Bisheshar Singh referred to above. In my opinion the view taken by the Court below is correct and I would dismiss the appeal with costs.
3. I am of the same opinion. On the 21st of October 1902, that is, after the date upon which the Agra Tenancy Act 1901, came into force, the respondent Kishan Lal and his brother, who were occupancy tenants, executed a usufructuary mortgage of their holding in favour of the plaintiff appellant Ram Sarup. He relet the land to the respondent Kishan Lal and now sues to recover the arrears of rent from Kishan Lal. The Courts below have dismissed the claim of the plaintiff, and in my opinion they were quite right. The plaintiff is really asking the assistance of the Court to enforce an agreement, the consideration of which was unlawful, and which is therefore void. In my opinion the Courts cannot give the plaintiff such assistance., A transfer of an occupancy holding such as that made in favour of the plaintiff is clearly forbidden by the terms of the Tenancy Act. For the appellant reliance was placed on an expression in a judgment of my own in the case of Lalu Ram v. Thakur Das Weekly Notes, 1905, p. 53 where I said that it was 'clear from Section 31 of the Act that a sub-lease or an agreement to sublet made by a tenant in contravention of Section 25 is not void but merely voidable at the suit of a landholder.' This observation was unnecessary for the decision of the question then under consideration, as the sub-lease in that case was granted before the new Tenancy Act came into force. In the passage cited above I am of opinion that I attached undue weight to the use of the term 'voidable' in Section 31. I agree with ray learned colleague in thinking that the expression was not intended to indicate that a transfer in contravention of the Act was merely voidable, as distinguished from void. The word 'voidable' was, it seems to me, used in the sense indicated by my learned colleague. I agree in the order proposed.
4. The appeal is dismissed with costs.