1. I have been asked by my brother Tyrrell to deliver judgment in tins case, which, in consequence of the course that has been taken by the learned Counsel for the appellant and the learned pleader for the respondents, and also in consequence of the manner in which the Lower Appellate Court has interfered with the first Court's decision, is not very simple. It is therefore advisable briefly to recapitulate the facts, to show what the real questions are which we have to determine in second appeal. It appears that certain property, over 87 bighas of sir-land, is situated in the village of certain co-sharers. Among others, one Kazi Ahmad Husain held sir-land in proportion to his 5 biswas share of the village, and Himayat Husain, who is said to have been related to Kazi Ahmed Husain, held in proport on to the other 5 biswas share of the zamindari. Upon the death of Ahmad Husain, the sir-land, to the extant of his share, would devolve, according to the Muhammadan law, upon his sons Fida Husain, Ala Husain and Jamal Husain and his widow Wahid-un-nissa The devolution would be in certain proportions which it is unnecessary to describe. It appears that, on the 2nd August 1869, Ata Husain, Jamal Husain, and Himayat Husain, executed a deed of usufructuary mortgage in favour of the present plaintiff, Karamat Khan, and it has been found chub they placed him in the entire possession of the 87 bighas representing their sir in the village. It has been found that the mortgagee was placed in lull possession of the whole area, and one difficulty in dealing with the case arises from the admitted fact that in that urea were included the shares of Fida Husain and Wahid-un-nissa, whose names were not put to the mortgage-deed of the 2nd August 1869. On the 17th April 1872, Fida Husain and Wahid-un-nissa joined with Ata Husain in executing a usufructuary mortgage in favour of three persons named Sami-ud-din, Hidayat Ali and Inayat Ali--Hidayat Ali being now represented by his daughter Ali-un-nissa and his sister Nasih-un-nissa. Another circumstance which should be mentioned is, that on the 20th November 1876, in the course of certain execution-proceedings, the zamindari rights of Himayat Husain, one of the mortgagors under the deed of the 2nd August 1869, were sold by auction and were purchased by Wazir Khan, Amin-ud-din and Inayat Ali, who was one of the mortgagees under the deed of the 17th April 1872. It has been found that it was not until October 1879, that Karamat Khan, the plaintiff-appellant, who obtained possession as mortgagee under the deed of 1869, was dispossessed of the land by the various defendants upon various allegations of right and repudiations of his rights under that deed. The object of the present suit is to recover possession of all the lands comprised in the mortgage of 1869, and the parties impleaded as defendants are the executants of that mortgage, also Fida Husain and Wahid-un-nissa, also the mortgagees under the deed of 1872, also the purchasers of Himayat's rights at the auction-sale of the 20th November 1876. The suit has been resisted upon various pleas which need not be described, except that Fida Husain and Wahid-un-nissa repudiated the mortgage on which the suit was brought, on the ground that they were not parties to it, and it was not binding on them. This plea related only to a 2 1/2 biswas share of the sir-land which is in suit. The other plea was that raised by Himayat Husain, who admittedly was a party to the mortgage of 1869, and whose rights had been sold in the auction-sale of the 20th November 1875. The Subordinate Judge has decreed the whole suit, except certain money-claims, regarding mesne profits, which are not now the subject of appeal, and in reference to which no argument has been addressed to us. The various defendants appealed to the District Judge, and he, in a judgment which went fully into the facts, arrived at a conclusion which, in my opinion, is unsound in law. First, with reference to the 2 1/2 biswas share of the sir-land which would be the share of Fida Husain and Wahid-un-nissa, he dismissed the claim on the ground that they were not parties to the mortgage of 1869. But it is clear from the findings of the Courts below, that at the time when that document was executed, Fida Husain and Wahid-un-nissa were aware of the transaction which made Karamat Khan the mortgagee, under the deed, of the whole property. It is also clear that, knowing this, they allowed the possession of Ata Husain, Jamal Husain and Himayat to appear as it covering the entire zamindari rights in the 10 biswas share of the sir. Under these circumstances this case appears to me to be one to which the equitable doctrine reproduced by Section 41 of the Transfer of Property Act applies. That section runs thus: 'Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property, and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.' This rule, which in principle is the same as that on which Section 115 of the Evidence Act is based, does no more than reproduce the dicta of the Privy Council in Ramcoomar Koondoo v. McQueen 11 B.L.R. at p. 52 where their Lordships observed: 'It is a principle of natural equity, which must be universally applicable, that, where one man allows another to hold himself out as the owner of an estate, and a third person purchases it, for value, from the apparent owner in the relief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing, either that he had direct notice, or something that amounts to constructive notice, of the real the; or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it.' Now the circumstances of this case furnish grounds for the application of this doctrine, and, so far, there is force in the argument of Mr. Amir-ud-din for the appellant, that the action of Fida Husain and Wahid-un-nissa, in allowing his clients to obtain a mortgage of the whole 10 biswas share of sir, amounted to making the mortgagee alter his position by the omission of these two persons, and that they cannot now turn round and say that at the time of the mortgage of 1869, the apparent parties to that transaction had no authority to mortgage the 2 1/2 biswas. But the case does not rest here : for only three years after the deed of 1869 these two persons, Fida Husain and Wahid-un-nissa, executed a mortgage, dated the 17th April 1872, in favour of strangers, a mortgage which, being usufructuary, would clash with the rights of Karamat Khan under the mortgage of 1869. It is unnecessary to consider the exact terms of that mortgage, but it contained a distinct statement by Fida Husain and Wahid-un-nissa that, although their names did not appear in the mortgage of 1869, yet they had mortgaged to him through or in the names of Fida Husain's brothers and Wahid-un-nissa's sons--Ata Husain and Jamal Husain. This deed further represents the amount of the money due in respect of their share as a charge which was to be paid off by the second mortgagee. This admission, so solemn and deliberate, not only shows that the second mortgagees of 1872 had notice of the prior mortgage of 1869, but is an admission, the best evidence in such cases, that the mortgage of 1869 was executed with the consent of Fida Husain and Wahid-un-nissa. It therefore appears that these two persons have no defence, either in law or equity, to the plaintiff's suit, with reference to their shares, and for the purpose of obviating the consequences of the lien of 1869.
2. Then, with reference to the 5 biswas share of zamindari rights in the sir, that is, of Himayat Husain, the question is what was the effect of the auction-sale of the 20th November 1876, in regard to the provisions of Section 7 of Act XVIII of 1873. That is to say, did Himayat, by reason of those provisions, acquire any right of the nature therein described so as to prevent Karamat Khan from getting physical possession of the land now in suit, in derogation of the occupancy-right? Mr. Amir-ud-din's argument at first struck me as a plausible one. He contended that by the general rule of construction--nova constitutio futuris formam imponere debet, non prceteritis--statutory provisions have ordinarily no retrospective effect. This, I concede; but the question is, does the rule apply to the present case? The argument is that Karamat Khan's rights were acquired under the deed of 1869; that he got actual possession of the land; and that, inasmuch as his rights originated in 1869, they cannot be vitiated by the Rent Act of 1873. Another rule is that where rights are taken away or impaired, the Court must place as strict a construction as they are in the habit of applying to penal statutes. This rule is discussed at pp. 160-161 of Wilberforce's work on Statute Lata and in Maxwell on the Interpretation of Statutes, pp. 257-258. It does not, however, apply to the present case. In India, since 1859, the Legislature has interfered in the interests of the agricultural population, by giving tenants the right of occupancy. In Lower Bengal this has been done recently even in a more extensive sense, but in these Provinces it was first effected by Act X of 1859, and this was afterwards replaced by the Rent Act of 873, which was in force when Himayat's proprietary rights in the zamindari mahal were sold. At that time there was no such ex-proprietary right as is provided by Section 7 of that Act, and is maintained in the present Act (XII of 1881). Now it is a rule of interpretation that when the Legislature changes the law, the change itself is an indication of the intentions of the Legislature, and is an element in the construction to be placed upon the later statute (Wilberforce, p. 108). Applying this rule, and reading this section carefully, I am of opinion that the statute operates to a certain extent in derogation of the rights of Mr. Amir-ud-din's clients under the deed of 1869, and effects the advantages which he would otherwise derive thereunder. Section 7 is in the following terms: 'Every person who may hereafter lose or part with his proprietary rights in any mahal shall have a right of occupancy in the land held by him as sir in such mahal at the date of such loss or parting, at a rent which shall be four annas in the rupee less than the prevailing rate payable by tenants-at-will for land of similar quality and, with similar advantages. Persons having such rights of occupancy shall be called 'ex-proprietary tenants,' and shall have all rights of occupancy tenants.' It appears CG ma that the runt important word in the section in connection with the present case is 'hereafter.' The statute was passed on the 22nd December 1873. The rights of Himayat were sold on the 20th November 1876, so there can be no doubt that Himayat, who had proprietary rights in the mahal in question, and held sir as such, did lose his proprietary rights, and therefore the case comes within the first portion of Section 7. The next important word is 'held,' which Mr. Amir-ud-din argues denotes actual possession. A short time ago, in the case Tulshi v. Radha Kishan Weekly Notes 1886 p. 74 the present learned Chief Justice laid down, with my concurrence, that the word 'held' in this section must not be rigidly construed to refer to manual or physical holding, but land possessed and belonging to a person as his sir. I am glad to find that my brother Tyrrell approves of this interpretation. There can be no doubt that Himayat 'held' the 5 biswas share of the sir. Then, the question is, what is the effect of this view of the law? Although the mortgage of 1869 must not be so affected as to deprive the mortgagee of all his rights, yet by the terms of Section 7, and by reason of the sale of the 20th November 1876, the nature of his means of benefiting by the mortgage were necessarily changed. Neither the preamble nor Section 1 of the Act contains any saving clause which could justify the interpretation that all the conditions included in a usufructuary mortgage are to be exempted from the operation of the Act, or of Section 7 in particular, merely because the mortgage was a subsisting one. If we were so to hold, in some cases where usufructuary mortgagees are in possession, no such rights as are created by Section 7 could come into existence for sixty years. Moreover, such mortgages may possibly never be redeemed; and if the fact that a mortgage, such as that of 1869 in the present case, is subsisting, were sufficient to prevent the operation of the statute, the result would be that the object aimed at by the Legislature would be defeated in respect of all sir-lands situate in villages which may at that time be in the hands of mortgagees. Such could not have been the intention of the Legislature, and I may add that the interpretation which I have placed is supported by the construction of similar phrases in English statutes, of which illustrations are given by Mr. Wilberforce at p. 165 of his work. In the result, I hold that Fida Husain and Wahid-un-nissa did mortgage their rights, or rather rendered their rights subject to the deed of 1869. Secondly, Himayat, by the operation of Section 7 of the Rent Act, became an ex-proprietary tenant of the land belonging to him at the time of the sale of the 20th November 1876. Under these circumstances, the possession must be given to the plaintiff-mortgagee under the deed of 1869 of such rights as Himayat had at the time of the mortgage, subject to Himayat's right as an ex-proprietary tenant. So far as the purchasers of Himayat's share, under the sale of 20th November 1876, are concerned, their rights are of course subject to the mortgage of 1869. Again, the rights of the mortgagees under the deed of 17th April 1872, fall under the rule of the law of mortgage, which constitutes the essence of the rule of priority, and which has been best enunciated in Section 48 of the Transfer of Property Act. Here the mortgage of 1869, and that of 1872, being both usufructuary, the latter must give way to the incidents of the former. I would give effect to these views in the decree of this Court. The first Court gave a decree for possession without qualification as to the statutory rights of Himayat. The Lower Appellate Court modified the decree. I am of opinion that the decree of this Court should be that the appeal succeeds in part, the Lower Appellate Court's decree being reversed, and that of the first Court being restored, with this qualification, that the possession which the plaintiff will get under this decree will be subject to such ex-proprietary tenant rights as Himayat may have had in his portion of the sir-land. With reference to costs, we propose to exercise the discretionary power given to us by Section 220 of the Civil Procedure Code by apportioning the costs as follows: The plaintiff will recover his costs in all Courts as against Fida Husain and Wahid-un-nissa to the extent of his claim against them. The decree as to costs in reference to the other defendants will be the same. As regards Himayat Husain, he and the plaintiff will respectively bear their own costs in all Courts, and, with reference to the costs of the other defendants, they will bear their own costs to the extent of their shares.
5. I agree that Musammat Wahid-un-nissa and her son Fida Husain, by their acts and omissions in 1869, as well as by their express admissions in 1872, have furnished sufficient grounds to justify the first Court's finding that they made themselves liable to the appellant in respect of the obligations and liabilities created by the persons who executed the mortgage to the appellant of 1869.
6. And, as to the question of the retrospective application of the rule of Section 7 of Act XVIII of 1873, I doubt if it be really involved in this case. Himayat Husain mortgaged his sir in 1869, and in 1876, his sir rights and interests, as such, went out of existence under the operation of the law of 1873 and assumed a different character. Over that tenure in its altered character the appellant still has his mortgage charge, but he has not, in the existing state of the law, a right to physical possession of the actual land, which was formerly Himayat Husain's sir, but is now his occupancy tenure.
7. Subject to this new right of Himayat Husain, the appellant retains his mortgage charge of 1869 over the ijamindari interests in this portion of the land acquired by Himayat Husain's vendee.' But as the present claim of the appellant is for possession only, it is unnecessary to go further into this aspect of the question.