Henry Richards, Kt. C.J. and Lyle, J.
1. This appeal arises out of a suit in which the plaintiffs claimed the sum of Rs. 499-15-0 principal and Rs. 270 interest. In the alternative they claimed that they might be put into possession of certain property. The court of first instance gave a simple money decree. The lower appellate court reversed the decree of the court of first instance and dismissed the plaintiffs suit; hence this appeal.
2. It appears that certain property, consisting partly of a fixed rate holding and partly of an occupancy holding was transferred by way of usufructuary mortgage to Nagina Misir in 1906. In 1909 Nagina Misir purported to make a sub-mortgage of the same property in favour of the plaintiffs. There can be no doubt that the mortgage of 1906, in so far as it purported to mortgage an occupancy holding, was absolutely void. Indeed we think, though it is not essential for the decision of the present case to decide the point, that the whole mortgage of 1906 was invalid. The defendants contend that the very same doctrine ought to be applied to the sub-mortgage, and that, the contract being an illegal one, the plaintiffs should not be allowed to get even a simple money decree. If the mortgagees under the mortgage of 1906 were unable to recover either the property or to get a separate money decree for the amount lent (and it is admitted they did not get possession) it would be on the ground that the contract was an illegal contract. We have therefore to see whether the contract which was made in 1909 between the plaintiffs and the defendants was also illegal. Section 20 of the Agra Tenancy Act provides that the interest of an occupancy tenant is not transferable save as therein mentioned. But in 1909 Nagina Misir was not an occupancy tenant nor had he any of the rights of an occupancy tenant vested in him. The transfer to him by the occupancy tenant was absolutely void, at least in respect of the occupancy holding. Therefore it seems to us that Nagina Misir, not being an occupancy tenant, did nothing in contravention of Section 20 of the Tenancy Act when he executed the sub-mortgage. He really did nothing worse than if he had purported to make a mortgage of property which did not belong to him. In the absence of fraud there would be no illegality in this. We therefore think that under the circumstances of the present case the plaintiffs were entitled to a simple money decree. We accordingly allow the appeal, set aside the decree of the lower appellate court and restore the decree of the court of first instance with costs.