1. This appeal arises out of an application under Section 12, Agriculturists' Relief Act. The property which was alleged to have been mortgaged was an occupancy holding. The mortgagor executed two deeds of so-called usufructuary mortgage on 18th July 1922 and a further deed of charge on 23rd June 1930. There can be no doubt after the decision in Ghassu v. Babu Ram : AIR1944All25 that the application could lie. The main question which remains was whether the applicant was bound to pay off the amount secured by the deed of 23rd June 1930 before he could recover possession of the property. The learned Judge of the lower appellate Court has held that he was not bound to pay off this sum. The learned Judge relied upon the case in Lallu Singh v. Ram Nandan : AIR1930All136 . That case, however, is not strictly in point. It dealt with three alleged mortgages of an occupancy holding before the Agra Tenancy Act, 1901, became law. It was held by two of the learned Judges who decided that case that the first usufructuary mortgage was valid under the provisions of the Tenancy Act of 1881 and that the other two alleged mortgages did not create even a valid charge upon the property. In these circumstances they held that the redemption of a valid usufructuary mortgage could not be prevented by the failure of the mortgagor to pay off certain unsecured debts which he had promised to pay. The third learned Judge who differed from the other two came to the conclusion that all three mortgages were invalid and on that finding he would not have allowed the mortgagor to get possession of the property without paying the amounts due under all three documents. That decision does not affect the decision in this case because there can be no doubt now that strictly speaking all three so-called mortgages in suit were invalid.
2. It was pointed out in Ghassu v. Babu Ram : AIR1944All25 that this Court has always refused to assist a mortgagor of occupancy land in getting possession of the land unless he made restitution, that is, that he paid back the money which he would have had to pay to the mortgagee if the mortgage had been valid. It was, therefore, held that a suit by a mortgagor of an occupancy right though strictly a suit for possession was to all intents and purposes of the same effect as a suit for redemption and that for this reason such a mortgagor might be allowed to invoke the provisions of Section 12, Agriculturists' Relief Act. It was clearly not the intention that a person who had obtained money by purporting to execute a mortgage which he was not entitled to execute should be in a better position than one who had executed a valid mortgage or, in other words, that the mortgagor of occupancy rights should be allowed to escape the effects of deeds of further charge which would have been binding on him if he had been entitled to transfer his interest in his occupancy holding. A person who invokes the provisions of Section 12, Agriculturists' Relief Act, must be considered to have come into Court on the assumption that the mortgage which he executed was valid and in these circumstances I do not think that he can treat one part of a series of transactions as valid and another part, that is, the deeds of further charge as invalid.
3. There is no principle of law on which he would be justified in acting in this way. If the matter is stripped of all technicalities, the simple position is that the occupancy tenant allowed another man to occupy his holding and cultivate it on the agreement that he would not eject him until he had paid him a certain sum of money which he had borrowed and that the Court will not help him to eject the person he has put into possession if he fails to carry out his obligation to pay back the money. There is no reason why that principle should apply only to the first two of' the mortgages in suit and some other principle should come into operation in respect of the third mortgage The result of the series of mortgage was that it was agreed between the parties that the so-called mortgagee should remain in possession until the mortgagor had paid him a certain sum of money, that is, the money due under all three documents. This Court would not be justified in equity in helping the mortgagor to eject the mortgagee against his own promise to pay back the money. I, therefore, consider that the mortgagor was not entitled to get back possession of the property until he had paid the whole amount due under the three mortgages, that is, two of 1922 and one of 1930.
4. It has also been urged on behalf of the defendant-appellant that the Court should not have applied the rules in the Debt Redemption Act to this case because a sum of money advanced by a usufructuary mortgagee is not a loan within the meaning of the Act. The argument is based on the allegation that a loan of this nature is not recoverable from the agriculturist or his land because the usufructuary mortgagee is not entitled to institute a suit for sale of the property. I have held in another case that there is no force in this argument and I am still of the same opinion. It is true that a usufructuary mortgagee cannot institute a suit for sale but he can recover the amount advanced in some cases out of the usufruct of the property which is in his possession and if a suit is brought for redemption he can recover the money from the agriculturist. It cannot, therefore, be said that the money is not recoverable within the meaning of the Debt Redemption Act. There is no force in this argument. The result of my decision is that I set aside the decree of the learned Judge of the Court below and remand the case to him for decision on the assumption that the plaintiff is liable before he recovers possession of the property to pay the amount due not only on the mortgages of 1922 but also on the mortgage of 1930. The principles of the Debt Redemption Act will be applied to the account which must be taken. The appellant will get half of his costs of this appeal.