1. The sole question for determination in this appeal is, whether a landlord can sue the usufructuary mortgagee of an occupancy tenancy for rent.
2. The respondent brought the suit out of which this appeal has arisen for recovery of rent of an occupancy holding from two sets of defendants. The appellant who was the mortgagee with possession constituted the second set. He pleaded that there was no relationship of landlord and tenant between him and the plaintiff and he could not be held liable for the rent, The suit failed as against the appellant in the Court of first instances, but the learned Additional Judge of Gorakhpur decreed the suit against the appellant as well.
3. For the respondent Mr. Haribans Sahai argued that the mortgagee had been paying rent and thereby converted himself into a tenant. But there was no such allegation of the plaintiff in the Court below and there was no such finding. No doubt, the principal tenants said that the mortgagee had been paying rent and they should be held liable. But, as I have said, there was no issue on the point and there was no decision.
4. The mortgage in question was created before the present Tenancy Act came into force. According to the rulings of this Court, an occupancy tenant could, in spite of the provisions of Section 9 of Act XII of 1881, sub-let his right to occupy the lands and it naturally followed from this that, he could transfer his right of possession to a mortgagee. It was in this view alone that this Court upheld, as between the mortgagor and the mortgagee, an usufructuary mortgage by an occupancy tenant. The leading case is that of Khiali Bam v. Nathu Lal 15 A. 219; A.W.N. (1893) 125 : 7 Ind. Dec. (N.S.) 859 (F.B.). At page 231 of the same volume will be found another Full Bench case Mahesh Singh v. Ganesh Dube, 15 A. 231; A.W.N. (1898) 180 : 7 Ind. Dec. (N.S.) 866 (F.B.) in which it was considered whether an occupancy tenant could sub-let his holding in perpetuity. The Court remarked that the term of the sub-tenancy was really immaterial and said that such sub-letting could not make the sub-lessee a tenant of the landlord. If any authority were needed for a clear proposition like this, this Full Bench case of Mahesh Singh v, Ganesh Dube provides one. There is no contract between the mortgagee of an occupancy tenancy and the landlord and because the tenant is prohibited by law from making a valid transfer, he, by the very fact of the transfer, cannot convert the transferee into a tenant in his own place. In the case of Saudagar Singh v. Ganga Singh 68 Ind. Cas. 274 : 19 A.I.J. 707 it was distinctly held by a Bench of two Judges of this Court that, even in the case of a fixed rate tenancy, the mortgagee did not become a tenant of the landlord even if he paid the rent with his own hand. It was observed that the payment would be payment on behalf of the mortgagor.
5. My conclusion is that the decree of the learned Judge of the Court below against the appellant was wrong.
6. The appeal is allowed and the suit of the respondent as against the appellant is dismissed with costs throughout.