1. The holding to which this appeal relates originally belonged to two brothers 'Baikunto and Gopal. Gopal died, we are informed, about 20 years ago leaving a widow named Annapurna. Baikunto also died some years later leaving a widow. Before his death Baikunto had mortgaged the entire holding to the predecessor-in-interest of the principal defendants who are the appellants before us. The mortgage was a usufructuary mortgage and the mortgagee obtained possession. Annapurna, however, brought a suit against the mortgagee and succeeded in regaining possession of a moiety of the holding as Gopal's widow. The mortgagee or his representative seems to have remained in possession of the remaining moiety of the holding. Then it appears that by an arrangement with the landlord Annapurna's half share of the holding was made a separate tenancy so that she became the sole tenant for that half. The tenant of the remaining half of the original holding would be the heir of Baikuuto after the death of his widow. But it is alleged in, the plaint, and not denied in the written statement, that Baikunto left no heirs. That being the state of things, the present suit was brought by the plaintiffs (the landlords of the holding) to eject the appellants, on the ground that as mortgagees they had no right to be in possession of a non-transferable occupancy holding, the landlord's consent to the transfer by way of mortgage not having been obtained. The Court of Appeal below has made a decree in favour of the plaintiffs and the principal defendants have appealed.
2. On their behalf it is contended by the learned Pleader that a transfer by way of mortgage is only a partial transfer and that there is no finding in the judgment of the lower Appellate Court that the tenant has abandoned or surrendered his rights. The question does not seem to have been raised in the Courts below, and the reason is evident. Baikunto having left no heirs, there is now no tenant whom the principal defendants can put forward as a shield to support their possession. That fact explains why it was not thought worth while to raise the point in the Court below on behalf of the appellants. Even if the principal defendants were allowed to raise this question now, it would, on the facts as they appear on the record, be of no avail to them. In the circumstances the appeal must be dismissed with costs.
3. I agree.