1. This appeal arises out of a suit brought by the plaintiff-respondent Ram Tahal for a declaration that a relinquishment of their holding made by the sons and brothers of Bhagwan Singh in favour of the zamindar, the third defendant, is void and ineffectual in so far as it relates to the lands mortgaged to the plaintiff by Bhagwan Singh. It appears that on the 20th of February 1897, Bhagwan Singh mortgaged to the plaintiff 11 bighas 11 biswas out of his occupancy holding consisting of 23 bighas, 15 biswas. Under this mortgage the plaintiff was put in possession of the mortgaged land but after Bhagwan Singh's death his sons and brothers relinquished the holding in favour of the zamindar. The plaintiff, therefore, brought the suit, out of which this appeal has arisen, for a declaration that the relinquishment was fraudulent and not binding on him. The Court of first instance decreed the claim and this decree has been affirmed by the lower appellate Court. The learned Judge of the lower appellate Court came to the conclusion that Bhagwan Singh and his brother Beni Singh mortgaged their interests in the holding separately to different mortgagees, that under these mortgages the mortgagees were in possession and for facility of cultivation separately cultivated portions of the holding, that they separately paid rents to the zemindar and that the zemindar accepted the mortgages and recognised the mortgagees. He has further held that after making the mortgage, the mortgagor was not competent to relinquish his holding and has accordingly affirmed the decree of the Court of first instance.
2. In coming to his conclusion he referred to certain siyahas of the zamindar which in his opinion proved that the zamindar received rent separately from the different mortgagees. This appeal has been preferred by the legal representatives of the third defendant, zarrin-dar, who died during the pendency of the suit. The first contention raised on behalf of the appellants is that the learned Subordinate Judge was wrong in referring to the siyahas which were not on the record. What happened was this. On the 8th of January 1909, the learned Subordinate Judge made an order directing further evidence to be produced before him and also for the production of the siyahas of the zamindar from 1893 to 1906.
3. These siyahas were produced on the date of the hearing by the pleader for the zamindar defendant and were looked at and treated as evidence in the case but through an oversight the pleader, instead of leaving the siyahas in Court with a view to their being placed on the record, took them away. This was discovered after the decision of the appeal and thereupon the learned Subordinate Judge ordered them to be produced and caused extracts from them to be placed on the record. These facts show that in referring to the siyahas in his judgment, the learned Subordinate Judge did not refer to evidence which was not on the record but which as a matter of fact had been produced before him daring the hearing of the appeal. There is, therefore, no force in the contention that the Court acted on evidence which was not on record and which was not before it. It is next urged that the learned Subordinate Judge ought to have found whether the relinquishment of their holding by the sons of Bhagwan Singh, the mortgagor, was or was not fraudulent. I think it is immaterial whether the relinquishment was or was not made in fraud of the plaintiff. It has been held that a mortgagor is not competent to relinquish his holding so as to impair the security given by him to the mortgagee and in fact to destroy it. This was held on the principle that no one shall derogate from his own grant. I may refer to the cases of Sham Das v. Batul Bibi 24 A. 538 : A.W.N. (1902) 151 and of Badri Prasad v. Sheodihan 18 A. 354. The next contention on behalf of the appellants is that this suit offends against the provisions of the second paragraph of Section 32 of the Agra Tenancy Act. I am unable to hold that this is so. The plaintiff does not ask for the division of the holding or of the rent payable for it. All that he claims is that it be declared that the relinquishment of the holding made by the legal representatives of the mortgagor is void as against him. This would not necessarily lead to the division of the holding. The Court below has found that although the holding was originally the joint holding of Bhagwan Singh and his brother Beni Singh, they had separately dealt with it and separately mortgaged their interests in it and that these mortgages were recognised by the landlord who received rent from the mortgagees. It has also found, as I have stated above, that for facility of cultivation the mortgagees have been cultivating different portions of the holding by mutual consent and this has met with the assent of zemindar. The object of the suit is not to effect a division of the holding and the result of it would not necessarily lead to such a division. Section 32, therefore, is no bar to the suit. The last contention on behalf of the appellants is that the plaintiff is not in possession of the entire holding but only of a part of it and that, therefore, having regard to Section 42 of the Specific Relief Act; he cannot sue for a declaratory decree only. This contention is without force inasmuch as according to the finding of the Court below all mortgagees must be deemed to be in separate possession by mutual consent and their possession of specific portions for facility of cultivation must be deemed to be the possession of all. The plaintiff cannot, therefore, be said to be out of possession of any portion of the property mortgaged to him. For the above reasons, I hold that the decree of the Court below is right and dismiss the appeal with costs including in this Court fees on the higher scale.