1. This is a second appeal by the plaintiff against the concurrent decrees of two lower Courts dismissing his suit. The plaintiff sued on a usufructuary mortgage dated 4th October 1915, a registered document executed by Inayat Khan and Ismail Khan in favour of the present plaintiff Kunwar Bahadur. The amount of the mortgage money was Rs. 500. The mortgaged property is described as a grove bearing certain numbers in an area of 3 bighas 3 biswas pukhta of land of ex-proprietary tenancy; and then follow five sub-numbers 685/1, 685/2,685/3,685/4 and 685/5 as in mahal Kunwar Bahadur, mortgagee, and a description of 325 trees. Some argument was made that only 325 out of 335 trees were mortgaged. It was possible that ten trees were not mortgaged because they had already been mortgaged in mahal Kunwar Bahadur. The mortgage also provided that the interest and the amount of profit would be equal and that in case of non-delivery of possession interest at 2 per cent, would be paid. The reliefs asked by the plaintiff were : (a) that the defendants be ordered to pay to the plaintiff Rs. 500 the principal amount and interest together with costs etc.; (b) in case of default of payment the mortgaged trees should be sold; and (c) if in the alternative the Court deems proper, possession over the trees should be awarded together with interest etc., for the period of dispossession.
2. The written statement filed by the defendants was that under a sale deed dated 25th February 1915, that is shortly before the mortgage in question, Inayat Khan had sold his share in the grove question to Mt. Hamidunnisa in lieu of1 dower debt and therefore Inayat Khan had no right of transfer left in him. It was-further pleaded that the grove in question was an ex-proprietary holding and that the mortgage could not be made at the time the grove in question was mortgaged and the mortgage deed was unlawful for these reasons also. The Courts below have held that under the law of 1915 the mortgage deed was void, and the suit of the plaintiff-failed altogether as the grove was not legally transferable. Now various points arise in regard to this matter. In the first place, the plaintiff entered into this mortgage with Inayat Khan and Ismail Khan under which they undertook to give him possession of this grove in 1915. The plaintiff brought his suit in 1927 when the period of 12 years had not expired, and therefore before the mortgage was barred by limitation. The plaintiff applied that the mortgage should be carried out. It is true that in 1915 there was a law prohibiting the transfer of an ex-proprietary holding, but whether that law did or did not apply to that holding is immaterial. The matter has been made clear by the present Tenancy Act (3 of 1926) and under Ch. 12 of that Act a person who is a grove-holder may transfer it by voluntary transfer under Section 197(b). There is no doubt at all that although the holding was originally an ex-proprietary holding, under the present law the defendants are quite entitled to make a voluntary transfer. Section 196, provides for the planting of trees by a tenant, and there is a provision that if the planting began prior to the Act, it was not necessary that the permission should be in writing and might have been either express or implied.
3. The evidence in the present case shows that the grove had been standing for a long time on this land. The ex-proprietary tenancy arose in 1883 with the sale of a share of Daulat Khan, the predecessor of Inayat Khan and Ismail Khan. There is an entry in Khasra of 1305 F, that 7 bighas 7 biswas, No. 685, that is the number in question, was cultivated by Inayat Khan and Ismail Khan as their ex-proprietary holding. Two years later, in the settlement of 1307 F., corresponding to 1899-1900 there were a number of trees on the holding as is found by the Munsif. jThe finding has not been contradicted by [the lower appellate Court. He states that there are 45 mango, 4 shisham, 12 nim, 4 guava, 1 kachnal and 1 babul trees. In the mortgage deed in question in 1915 the number of trees had greatly increased and they comprised 325 trees, on the area mortgaged which was 3 bighas 3 biswas. Taking that area the trees would be planted on an average of 6 yards apart, and in our opinion that would change the nature of the land and make it a grove. The plaintiff therefore is asking that the contract which is now perfectly legal should be carried out, and the provisions under which it had been held by the Courts below to be illegal, that is, Section 23 Contract Act, no longer applies. It may be noted that in Section 198, of the present Tenancy Act it is laid down that when land is held by any person who has no proprietary right therein and the land is grove land, then the Court may presume that he holds such land as a grove-holder. Under that presumption therefore the present defendants are grove, holders. Now the Courts below have referred to various rulings, but there have been considerable variations in these cases in regard to the right of a person who was a tenant and had a grove to transfer his right in the grove. There are two rulings to which reference may be made. One of these is Jalesar Sahu v. Raj Mangal A.I.R. 1921 All. 168. In that ruling it is laid down that where an occupancy tenant planted trees and ceased to use land for agricultural purposes, his occupancy tenantry became a grove and was subject to all the incidence of grove land. The matter has also been before the present Bench in Ram Chandar v. Tewari Hub Lal : AIR1935All635 . It was there held that where an occupancy tenant mortgaged a plot of his holding in 1913 and a grove existed on that plot which had been planted with the implied permission of the zamindar, then the nature of the plot was altered from an occupancy tenure to a grove tenure, and the plot became capable of| being mortgaged and could be sold in execution of a mortgage decree. This appears to have superseded the rulings on which the Courts below have relied. In our opinion this is sufficient authority for the plaintiff in the present suit. We may also refer to another provision of the law contained in Section 43, T.P. Act. It is there provided that if a person fraudulently or erroneously represents that he is authorized to transfer certain properties and professes to transfer such properties for consideration, such transfer shall at the option of the transferee operate on any interest which the transferor may acquire in such properties at any time during which the contract of transfer subsists. Learned Counsel for the respondent argued that his client had made no erroneous representation because he said an erroneous representation on a point of law would not come within the meaning of the section. We see no reason for such a view.
4. In our opinion the respondents in executing the mortgage in 1915 represented that they were entitled to make this transfer in accordance with the ordinary provisions in the Transfer of Property Act. As a matter of law the respondents argued that they were not entitled to make this transfer; but there is no doubt whatever that with the passing of Act 3 of 1926 the respondents became capable of making the transfer in question. Therefore even if the law was formerly in accordance with the view of the respondents, by the application of Section 43, T.P. Act, the transfer should operate on the interest now held by the respondents, which is now a transferable interest. We therefore reverse the findings of the Court below on issues 1 and 2 and we remand the suit for disposal on the remaining issues, 3 and 4. Costs incurred will abide the event. Appellant will be entitled to refund of court-fee.