Mithan Lal, J.
1. The following question has been referred by a learned single Judge to a Division Bench.
'Whether a mortgagee under a void mortgage of an occupancy holding acquires the status of an asami under the provisions of the Zamindari Abolition and Land Reforms Act.'
2. Briefly stated the facts are that the predecessor-in-interest of plaintiff respondent Tulsi Mallah executed a mortagage of his occupancy holding in favour of the predecessor in interest of the defendant appellant on 14th May, 1913, for a consideration of Rs. 500/-. The present suit was instituted in the civil court for possession of the disputed property on payment of mortgage money. The defence was that the suit was not maintainable in the civil court and that the defendant had become Asami and the only proper remedy for the plaintiff was to institute a suit under Section 202 of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter called as the Act).
3. Both the Courts below have overruled the defence and have decreed the suit on payment of Rs. 500/- holding that the defendants had not become Asamis and were mere licencees. When the matter came before a learned single Judge of this Court he found conflicting opinions in the cases of Judhishthir Prasad v. Shanti Prasad Shukul, AIR 1955 NUC (All) 4171. In that case late Mr. Justice Kidwai took the view that a mortgagee under a void mortgage could not be treated to be an Asami. The same view was taken by the learned single Judge himself, who had made the reference, in the case of Ram Adhar Pathak v. Raj Kumar Singh, decided by him on 19th November 1962. A different view was, however, expressed by Kailash Prasad, J. in Janki Koeri v. Jamuna Koeri : AIR1963All535 . It was on account of the aforementioned conflicting views that a reference of the question has been made to a Division Bench.
4. Sri N.D. Ojha, learned counsel for the appellant, has contended that under Clause (d) of Sub-section (1) of Section 21 of the Act a mortgagee in actual possession from a person belonging to any of the classes given In Clauses (i) to (vii) and (ix) of Section 19 shall be deemed to be an Asami. In this case the mortgage being of an occupancy holding, it will be covered by Clause (iii) of Section 19. Consequently, the appellant became Asami and the only proper remedy for the respondent was to institute a suit for ejectment under Section 202 of the Act. For this purpose learned counsel has submitted that even though the transfer of anoccupancy holding or the holding of a hereditarytenant may not have been transferable under the law yet on reading SECTIONS 19 and 21 (i) (d) together the effect was that every person who was in fact a mortgagee from the tenants described in the aforementioned clauses of Section 19, would acquire the status of an Asami.
Sri V.P. Misra, learned counsel for the respondent has, on the other hand, contended that according to the provisions of the U. P. Tenancy Act or under the old N. W. P. Tenancy Act of 1881 certain transfers of non-transferable tenancies such as occupancy tenancies were permissible and the Full Bench in the case of Khiall Ram v. Nathu LAL, ILR 15 All 219 expressed the view that the right of occupancy though may not be strictly transferable yet the legislature did not prohibit the occupancy tenant from transferring the right, to occupy. According to him Section 19 applies only to such rights which were transferable under the provisions of law and only those mortgagees in actual possession have become Asamis who were in possession as mortgagees of transferable tenures. According to his submission a mortgagee of an occupancy holding was not a mortgagee in law and could not be treated to be in actual possession as a mortgagee and so Clause (d) of Sub-section (1) of Section 21 of the Act did not apply. He has also contended that according to the earlier decisions of this Court the position of such a mortgagee is that of a mere licencee and in no sense has he become a mortgagee. Consequently, the Courts below were right in holding that such a person is not a mortgagee in possession.
5. The word mortgage or its derivatives mortgagor or mortgagee have not been defined in the Act. They have to be assigned the same meaning as is assigned to them under the Transfer of Property Act. Under Section 58 of the said Act a mortgage is defined as 'a transfer of an interest, in specific immoveable property for the purposes of securing the payment of money advanced etc. The person who makes the transfer is called mortgagor while the transferee a mortgagee. For the purposes of a mortgage, therefore, it is necessary that there should he a transfer of an interest in specific immoveable property. Mortgages of occupancy holding which were not permissible by law could not be recognised as such because the transfer of interest of the mortgagor in land was forbidden by law. In the Full Bench case of Mahabal Singh v. Ramraj, : AIR1950All604 , which was also also a case of a mortgage of an occupancy holding it was held that though such a mortgage was voidable yet the possession of such a mortgagee was a permissive possession.
In the case of Ajodhyia Singh v. Data Din, : AIR1952All544 Agarwala, J. expressed the view that the mortgagee occupied the position of a licencee and the mortgagor could revoke the licence at any time and enter into possession on payment of the money by instituting a suit under Section 180 of the U. P. Tenancy Act. In the Division Bench case of Barhu Singh v. Kharpattu, : AIR1956All436 it was held that a mortgagee of an occupancy holding was amere licencee ana the licence was revokable and the suit could be instituted when the mortgagee failed to deliver possession on demand. According to these authorities and the view expressed in those authorities with which we respectfully agree, the position of a mortgagee from an occupancy tenant is not that of a mortgagee in law but of a mere licencee. In Second Appeal No. : AIR1963All535 brother Kailash Prasad, J. agreed to the view that the position of a mortgagee of an occupancy holding was not strictly speaking that of a mortgagee under the provisions of the Transfer of Property Act but he thought that his position was analogous to it. He further held that a mortgagee in possession from an occupancy holding was not a trespasser. There is no dispute with respect to this views expressed by the learned Judge. But later on he held that even though a mortgagee from an occupancy tenant was not a mortgagee in law yet his possession being analogous to that of a mortgagee and he not being a trespasser, such a person acquires, the status of an Asami under Section 21(1) (d). We do not agree with him that the legislature while using the expression 'mortgagee in possession' in Section 21(1) (d) contemplated a person in whose favour a mortgage not in accordance with law was executed. In order that a person may be covered by Clause (b) of Sub-section (1) of Section 21 he must be a mortgagee in law. As we have already stated, the position of a mortgagee of an occupancy holding, the transfer of which was forbidden by law, could not be that of a mortgagee in law. He was a mere licensee and consequently he could not be treated to be a mortgagee in possession for purposes of Section 21(1)(d) of the Act. Such a person therefore could not become an Asami within the meaning of the said provision of law. We agree with the view taken by the two learned single Judges in the cases of Judhishthir Prasad AIR 1955 NUC (All) 4171 and Ram Adhar Pathak, decided on 19th Nov. 1962 (All) (supra) and disagree with the view taken by Kailash Prasad, J. in the case of Janki Koeri, : AIR1963All535 (supra).
6. It may also be mentioned that according to the provisions of Sections 18, 19 and 21 of the Act a distinction appears to have been maintained by the legislature for purposes of acquisition of bhumidhari, sirdari and asami rights according to the transferable interest of the tenure holders in possession of the land. If a person had a right of transfer by sale even though he may have been an occupancy tenant or a hereditary tenant he has been given the status of a bhumidhar under Section 18(1) (d) of the Act. A person who had a limited or a restricted transferable right appears to have been given a lesser right, that is he became a sirdar under the provisions of Clauses (i) to (vi) of Section 19. Mortgagees in possession from such persons covered by Clauses (i) to (vii) or Clause (ix) of Section 19 were conferred asami rights under Section 21 (1) (d). It may also be noted that a distinction between transferable and non-transferable rights and void and voidable subleases of agricultural holdings was also maintained in the U. P. Tenancy Act and the provisions of Sections 18, 19and 21 of the Act appear to have been based upon the conception of the tenancy law. It appears to us that when the Legislature used the expression 'mortgagee in possession' it intended to use that expression in the sense that the mortgage should be such as it permitted by law and the mortgagee a person who had been put into possession by a lawful mortgage. It does not appear to cover a case of a person in whose favour a mortgage was executed which was not permitted by law. In the instant case the mortgagor had no transferable interest in the land because it was an occupancy holding. The position of the mortgagee, therefore, was not of a mortgagee in possession according to law so as to attract the provisions of Clause (d) of Sub-section (1) of Section 21 of the Act.
7. Our answer to the question, therefore, is: 'A mortgagee under a void mortgage of an occupancy holding does not acquire the status of an asami under the provisions of the U. P. Zamindari Abolition and Land Reforms Act.'
8. The reference is answered accordingly.