1. This is an appeal by the defendants arising out of a suit brought by a mortgagee for recovery of possession of certain lands and, in the alternative, for recovery of a proportionate amount due.
2. It appears that the defendants made a mortgage of occupancy and fixed-rate holdings in the year 1911 for a sum of Rs. 999-15-0 in favour of the plaintiff. The plaintiff's case is that he has been in possession of the occupancy lands all along and is in possession of them even now, but; that as regards the fixed-rate tenancies, he was put in possession but has since been dispossessed. The defence was that the mortgage was void and the plaintiff had no right to seek the assistance of the Court.
3. The Court of first instance dismissed the suit on the ground that the mortgage was one transaction and the whole of the mortgage was illegal. It also came to the conclusion that inasmuch as the plaintiff wanted to retain possession over the occupancy lands, he did not come to Court with clean hands and was not entitled to any relief. The suit was accordingly dismissed. On appeal the learned District Judge has taken a contrary view. Relying on the case of Rajendra Prasad v. Ramratan Rai (1917) 39 All. 539, he is of opinion that it was open to the mortgagee to claim relief against the fixed-rate tenancies which were transferable. He has accordingly allowed the appeal and remanded the case for disposal of the other issues.
4. In our opinion it is unnecessary in this case to decide the question whether when a mortgage is made of occupancy holdings along with certain other properties which are legally transferable for a single consideration, the whole transaction is or is not void. It is therefore, unnecessary to consider the ruling in Rajendra Prasad v. Ramratan Rai (1917) 39 All. 539. It is quite sufficient for the purpose of this case to say that the plaintiff is not entitled to seek any relief in Court at all. He admittedly retains possession of the occupancy lands which are not transferable and he wants to recover possession of the remaining lands. If his suit were to be decreed the result substantially would be to enforce the entire mortgage contract, part of which is admittedly illegal. It seems to us that such a relief ought never to be granted. In the case of Rajendra Prasad v. Ranratan Rai (1917) 39 All. 539, the mortgagee had actually given up all claim to the occupancy lands which were not transferable. In the present case the mortgagee actually retains possession of the occupancy lands and has not given them up. He cannot, therefore, be entitled to a decree for possession.
5. The learned Advocate for the respondent has urged that in any case he is entitle to a proportionate money-decree. If such a claim were allowed, the result would be to split up the mortgage money which was one single consideration for the transfer. It is impossible for a Court to say how much of the entire consideration was intended to be for the occupancy lands and how much for the fixed-rate tenancies when the mortgage deed makes no such apportionment. We cannot, therefore, even give the plaintiff a decree for a proportionate amount of the mortgage money.
6. We accordingly allow this appeal and setting aside the order of the lower appellate Court, restore the decree of the Court of first instance with costs in all Courts.