1. Pheku sued to redeem a mortgage of sir plots. The mortgage was made on 1st July 1895 by the father of the defendant Sahdeo Singh. Subsequent events with relation to the property have rendered the matter of redemption difficult. Between 1901 and 1906, at any rate after the passing of the Tenancy Act, 1901, Pheku purchased the entire zamindari property of Sahdeo. This event turned the mortgage of 1st July 1895 into a mortgage of ex-proprietary tenancy, and the possession of Sahdeo was maintained through his mortgagee Naurang. Subsequent to the purchase by Pheku, Naurang purchased half the property at auction sale which was held on foot of a mortgage which was prior in date to the mortgage on foot of which Pheku purchased the entire zamindari property. In 1907, therefore, the position was this. In the joint property Pheku was owner of one-half, Naurang of the other half and in addition Naurang was in possession as mortgagee of the ex-proprietary plots 55 under the mortgage of 1st July 1895. Subsequently there was a partition between Naurang and Pheku and out of the 55 plots 20 were allotted to the plaintiff Pheku and 35 to the defendant Naurang.
2. There was yet another event to follow. On 22nd May 1923 Sahdeo surrendered his tenancy rights in the 20 plots to Pheku and transferred his right of redemption in the 35 plots also to Pheku. It appears that though the 20 plots were allotted to the plaintiff the defendant Naurang Singh has continued in possession thereof. The plaintiff instituted the present suit to redeem the mortgage. As to the 20 plots, he desired to be put in possession as proprietor, and as to the 35 plots he desired to be put in possession as mortgagee of ex-proprietary rights on behalf of Sahdeo Singh. There can be no doubt that Pheku's promise to remain in possession on behalf of Sahdeo is merely a pretence, as some reason had to be sought for his possession of the 35 plots.
3. Both the Subordinate Courts decreed the suit for possession. As to the 35 plots, I have no doubt that those Courts ware wrong. Section 20 (2), Tenancy Act, 1901 prohibited the transfer of any interest of an ex-proprietary tenant with one exception which does not apply here. What is practically alleged about the 35 plots is that Sahdeo sub-mortgaged them. A mortgage was existing, and he transferred the equity of redemption by way of a mortgage. That is clearly a transfer of an interest in ex-proprietary tenancy which is forbidden by law. Sahdeo's transfer of 22nd May 192(SIC) gave no interest to Pheku in the 35 plots which are allotted to Naurang's patti by the partition. Pheku, therefore, cannot redeem them.
4. As to the 20 plots, I think that the situation is different. By the division of the mahal into two pattis the mortgage was broken up. The proprietor's rights were divided between Pheku and Naurang. As to the 20 plots Pheku was proprietor and Sahdeo ex-proprietary tenant. Sahdeo by relinquishing his rights of ex-proprietary tenancy made it possible for Pheku to take possession of the 20 plots physically. Pheku finds Naurang in possession, and Naurang derives his rights from the mortgage. Under the circumstances I think that Pheku is entitled to pay off the mortgage and take possession of the 20 plots.
5. It appears from the recital in the plaint that the 20 plots are of an area which is half of the area of 35 plots of Naurang According to the findings above, therefore, Pheku will redeem one-third of the property. I grant a decree for the redemption of the 20 plots given in list B of the plaint on Pheku depositing Rs. 166 in the trial Court within three month's of to-days' date. If the money is already in deposit Naurang may remove Rs. 166 out of the deposit. I do not grant any mesne profits, because the claim of the plaintiff for redemption of the entire area of land (55 plots) was untenable. The defendant shall receive half his costs throughout.