1. This is an appeal by a plaintiff mortgagee in respect of a usufructuary mortgage of an occupancy holding granted on the 1st of October 1901. On some date in 1904 the mortgagee obtained possession. It is agreed that from that date this transaction is governed by the provisions of the Tenancy Act of 1901. In April 1910 the mortgagee was dispossessed by the mortgagor and he now brings this suit for possession. Both Courts have decided against him, upon the ground that the mortgage transaction under which he claims to take possession is, by the Act which now governs it, invalid. The point argued on behalf of the appellant is that the mortgagee having once recovered possession, if he is dispossessed by the mortgagor without being paid off, can notwithstanding the invalidity of the transaction again recover possession. The fallacy in that argument appears to me to be that in a suit for possession he is still asserting a transaction which is invalid. My attention was drawn to a decision in Bahoran Upadhya v. Uttamgir 12 Ind. Cas. 112; 8 A.L.J. 931; 33 A. 779, where it was held that a mortgagor under similar circumstances who was out of possession could not recover it without paying the mortgage money. On the other hand it has been held in the case cited in the judgment of the Court below that a mortgagee cannot recover possession. The principle seems to be an illustration of the maxim that where both litigants are parties to an invalid transaction, the position of one in possession is stronger and must prevail In this case it is to be observed that the mortgage money has been deposited in Court by the mortgagor and so far as appears from anything before me, he has done equity.
2. I see no ground for interfering with the decision of the lower Appellate Court and dismiss the appeal with costs.