TMI Blog1987 (3) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... ary mortgage of an occupancy holding was not valid as a mortgage with all its incidents and subject to the provisions of law relating to usufructuary mortgages, but was valid only to the limited extent that the mortgagee was entitled only to retain possession of the land mortgaged till there was repayment of the mortgage debt. 2. The question arose in proceedings in a suit under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act, 1951 for possession on payment of the mortgage money brought by respondent No. 1 Bansi claiming himself to be an heir of the original mortgagors Sheo Balak and Ram Phal, on the ground that the appellants who were the successors-in-interest of the original mortgagee Bhairo Singh, had become asamis a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 963 dismissed the appeal. The appellants moved the High Court under Article 226 of the Constitution but a learned Single Judge by his judgment dated February 28, 1966 dismissed the writ petition and upheld the order of the Board of Revenue. On appeal, a Division Bench following the decisions in Khiali Ram v. Nathu Lal, ILR (1893) 15 All 219, Barhu Singh v. Kharpattu (supra) and Samharu v. Dharamraj Pandey (supra) held that the transaction of the present kind was not a mortgage properly so-called but yet was a mortgage within the meaning of Section 21(1)(d)of the Act. 3. Shri Juneja, learned Counsel for the appellants, who are successors-in-interest of the original mortgagee Bhairo Singh strenuously assails the correctness of that view an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n starting from Khiali Ram v. Nathu Lal (supra) down to Samharu v. Dharamraj Pandey (supra). It follows that it has been the settled law as administered in the then United Provinces that a usufructuary mortgage of an occupancy holding was invalid and there was no transfer of an interest by the occupancy tenant and the mortgage acquired no other right other than the right to retain possession and fall back upon the stipulation in the so-called mortgage bond till his money was paid. As pointed out in the Full Bench decision in Samharu v. Dharamraj Pandey (supra), the view that a usufructuary mortgage by an occupancy tenant was not valid in the eye of law has been accepted by the Legislature in Clause (d) of Section 21(1) of the U.P. Zamindari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in case of such a transfer, the tenant would be deemed to have abandoned the holding and therefore the right of an occupancy tenant cannot be set up by the purchaser in defence to a suit for ejectment by the zamindar: Now, if a ryot having a right of occupancy endeavours to transfer it to another person, and, in fact, quits his occupation, and ceases himself to cultivate or hold the land, it appears to me that he may be rightly considered to have abandoned his right, and that nothing is left in him which would prevent the zamindar from recovering the possession from the person who claims under the transfer. That very eminent Judge explained this in another way: (I)f the right which is given by the law is one which exists only so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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