1. The facts of the case out of which this appeal arises are as follows: The defendants-appellants were owners of certain lands which they cultivated as their sir. On the 15th of July 1905, they executed a document in favour of the plaintiff-respondent to the following effect they set forth that they had taken a loan of Rs. 599 from the plaintiff and had placed him in actual physical possession of their sir lands so that he might cultivate the lands himself or through sub-tenants in order that the plaintiff might recover from the income of the land the interest on his money. They made a stipulation as to the payment of revenue due on the lands with which we are not concerned. They further contracted that they should redeem the mortgage only by paying the principal in the pumamashi of Jeth of any year. They further stipulated that if they or any of their heirs in future should dispossess the plaintiff then the latter should be able to recover from then the amount lent with interest as damages at the rate of 24 per cent, per annum from their person and property. The document nowhere contains a hypothecation of the property in question. It has been found as a matter of fact by the Courts below that the defendants did not place the plaintiff in actual physical possession of the sir lands.
2. The plaintiff came into Court asking for the following reliefs: (a) actual possession over the lands in suit with damages or (b) in the alternative for a decree for sale of the mortgaged property with costs and future interest to recover Rs. 599 principal and Rs. 144 interest by way of damages. The Courts below have held that the plaintiff was not entitled to actual physical possession over the sir lands inasmuch as the defendants became ex-proprietary tenants on the execution of the document and as such were entitled to hold and cultivate the lands on payment of rent. They have further held that by reason of the plaintiff not having got actual possession from the defendants there has been diminution in the security offered by them and under Section 68, Transfer of Property Act, the former was entitled to recover the money and accordingly they granted him a simple money decree only. The defendants have now appealed to this Court and urge that in so far as the contract between the parties was for delivery of possession of the ex-proprietary tenure which came into existence on the execution of the mortgage, it is void but that in so far as it is a mortgage of proprietary rights, the contract was a perfectly legal one and as the appellants are ready to pay any rent which may be fixed upon their ex-proprietary tenure, the plaintiff is not entitled to any relief whatsoever.
3. There can be no question that directly the mortgage was executed the appellants became ex-proprietary tenants of the lands and as such were entitled to continue in cultivatory possession on payment of rent. In so far as the contract may be deemed to bean usufructuary mortgage of the ex-proprietary tenure there can be no doubt that it is void in view of the terms of Sections 10 and 20 of the Tenancy Act. In the case of Murlidhai v. Pern Raj 22 A. 205, which was decided under the old Act No. XII of 1881, it was held that if the vendor of land contracts to put the vendee in cultivatory possession of the sir land, the contract is void and the vendee cannot recoverany part of the sale consideration on the failure of the vendor to put him in such possession. The present is a case not of sale but of mortgage but tinder the Tenancy Act a mortgage of ex-proprietary right is as invalid as the sale mentioned in the above ruling. On behalf of the respondent no attempt has been made to support the decision of the lower Court but it has been urged that in view of the terms of Section 65, Contract Act, now that the contract has been discovered to be void the plaintiff is entitled to the return of his money. Attention on this point was called to the ruling in Jijibhai Laldas v. Nagji Gulab 11 Bom. L.B. 693 : 3 Ind. Cas. 761. The position of the parties in the case quoted was the reverse of the position occupied by the parties to the present appeal. In that case a certain alienation was declared to be void on account of the terms of the Bhagdari Act, 1862. The transferee had actually been put in possession and the alienor came into Court suing for possession of the property on the ground that the transfer was void. The Court decreed the claim, only on the terms of the plaintiff regarding the money which he had received from the defendant, on the principle that he who seeks equity must do equity. The case is an example of the sale in pari delicto potior est conditio defendant is. In the present case the parties are in a totally different position. The defendants are in possession and the plaintiff seeks to enforce an agreement which is void. As was observed by Banerji, J, in Murlidhar v. Pem Raj 11 Bom. L.B. 693 : Ind. Cas. 761, to accede to the plaintiff's request would be equivalent to enforcing an agreement the consideration of which was unlawful. That case was of a transfer of an occupancy holding. In our opinion the parties must be held to have known at the date of the executon of the mortgage deed that the transfer of an ex-proprietary interest in the sir land was contrary to the provisions of the Tenancy Act and, therefore, void. The parties, therefore, are in pari delictu and the case is clearly one of those in which relief cannot be given to the plaintiff. Section 65, Contract Act, doesn't apply to these circumstances. As the mortgage in so far as it is a mortgage of proprietary rights is a perfectly valid one it is open to him to have rent assessed en the ex-proprietary tenure and to recover it from the defendants who would be entitled to redeem the mortgage on the date mentioned in the mortgage bond. In the present case the plaintiff is not entitled to any relief whatsoever. In this view of the case we allow the appeal, set aside the decrees of the Courts, below and dismiss the plaintiff's suit with costs in all Courts.