W. Comer Petheram, C.J.
1. This was a suit brought by a mortgagee for possession of the mortgaged property, which was a zamindari interest belonging to the defendant, including sir-land. The first question which arose in the case was--What is the position of a zamindar who has mortgaged his interest with possession, in reference to his sir? That point was decided by the ruling of the Full Bench, dated the 7th March (Ante, p. 553). The Court then held that the zamindar's position was that of an ex-proprietary tenant under the Rent Act, a mortgage being a transfer of a proprietary interest. After this decision, the case came before a Divisional Bench, and a further question then arose. It appears that, after the mortgage and the creation of the ex-proprietary tenancy, the defendant relinquished his ex-proprietary rights in favour of the new zamindar, the mortgagee. The question now is, whether the transaction can be enforced, because, although the ex-proprietary tenancy was relinquished, the mortgagee was never put in possession, and the agreement is still executory.
2. I am of opinion that the transaction cannot be recognized. The position of an ex-proprietary tenant is defined by the Rent Act. Section 7 creates the tenancy; Section 9 lays down certain rules relating to transfer, and provides that 'the rights of tenants at fixed rates may devolve by succession or be transferred. No other right of occupancy shall be transferable in execution of a decree, or otherwise than by voluntary transfer between persons in favour of whom as co-sharers such right originally arose, or who have become by succession co-sharers therein.' The plain meaning of this is, that occupancy-tenants (including all who occupy the land for their subsistence except tenants at fixed rates) are not competent to sell their rights, except to co-sharers in the same interest. Where a number of persons are jointly engaged in the cultivation of land, they may, as between themselves, sell their occupancy-rights. In other words, any one of them may so transfer his rights that, in a case where, for instance, six persons originally were in joint cultivation, one of them has gone, and only five of the original joint cultivators remain. No stranger, however, is introduced into the original body. We here have the case of a mortgage, and a new class of occupancy-tenants created in the person of the mortgagor. The mortgagor then proposes to relinquish his rights in favour of the landlord. Now, if this were a valid transaction, the landlord would in effect become a joint cultivator with the other co-sharers. This means the introduction of an outsider as an occupancy-tenant, and that is exactly what the law prohibits. Section 31 of the Rent Act was enacted by the Legislature absolutely in the interests of the cultivator. It provides in effect that, although the occupancy-tenant may not be turned out, and may not transfer his rights, he is not to be regarded as bound to his holding, that he may relinquish it, and that in that case he is not liable for rent. This provision has been taken advantage of by letting the zamindar buy the holding, and thus introducing a new cultivator. My answer to this reference is, that the occupancy-tenant's interest is not absolute, and that the mortgagor cannot, under the circumstances, be ejected from the sir-land by the new zamindar, the mortgagee.
3. As I understand the question put by this reference, it is virtually this: Can an ex-proprietary tenant relinquish his ex-proprietary tenancy to his landlord by private arrangement.
4. The circumstances of the case are, that on the 3rd April 1882, a mortgage-deed was executed by the defendant in favour of the plaintiff, and the latter now sues for possession of the property. On the 26th April, a document was executed, which virtually assigned or relinquished the ex-proprietary rights which, under the recent ruling of the Full Bench, the mortgagor had acquired on the completion of the mortgage.
5. It is contended, on behalf of the mortgagee, that the document is a valid one, and that it should be recognized and enforced. In the first place, it does not recite any consideration; and if a document is executed for no consideration, it cannot be enforced. But it has been said that there was some consideration, namely, the release of the mortgagor from payment of the rent, which otherwise would have been due from him. If this is correct, there is a transfer of ex-proprietary rights by the mortgagor in favour of the mortgagee, and that is a transaction in the teeth of Section 9 of the Rent Act. So that, whichever way we look at the matter, the contract is either unenforceable or prohibited by Section 9. I am of opinion that it is not competent for an ex-proprietary tenant, by private arrangement, to transfer his ex-proprietary rights to his landlord; and in this view I concur in the answer given to this reference by the Chief Justice. The result is, that in any decree in this suit giving possession to the mortgagee, he cannot obtain the ex-proprietary rights referred to in the deed.
6. I am of the same opinion.
7. I am of the same opinion.