JUDGMENT John Stanley, C.J. and Banerji, J.
1. One Rajab Ali was entitled to a share of zamindari property and sir lands appertaining to it. On the 25th of January, 1890, he mortgaged it to the plaintiff, and in the years 1893 and 1895 he also granted usufructuary mortgages in favour of the defendants of the same property. The defendants brought a suit for possession as mortgagees on foot of their earlier mortgage, and obtained a decree on the 4th of January, 1894, and on the 2nd March, 1894, got possession of the sir lands. The plaintiff brought a suit on foot of her mortgage impleading both Rajab Ali and the defendants, and on the 24th of June, 1895, obtained a decree for sale, which decree was made absolute on the 15th of February 1896. At the auction sale held in execution of her decree, the plaintiff purchased the property on the 20th of August, 1896, and obtained possession on the 25th of February, 1897. Upon this sale Rajab Ali became ex-proprietary tenant of the sir lands, and he, on the 15th of January 1898, relinquished his ex-proprietary rights in favour of the plaintiff. This, the defendants maintain, Rajab Ali had no right to do. The plaintiff instituted the suit out of which this appeal has arisen for possession of the sir lands, alleging that the defendants had ejected the sub-tenants from a portion of such lands, and had obtained possession of such portion, and that they had obstructed the plaintiff in realizing the rents of other portions of the sir lands. The main defence was that Rajab Ali's ex-proprietary right in respect of the sir land became vested in the defendants as usufructuary mortgagees, and that he was not competent to relinquish this right in favour of the plaintiff to the detriment of the defendants, and so the relinquishment was void as against the defendants.
2. The Subordinate Judge upheld this defence, and decided that Rajah Ali could not, to the prejudice of his mortgagees, the defendants, relinquish his ex-proprietary holding. He held that the plaintiff by her prior purchase acquired only the zamindari interest of Rajab Ali, and that the defendants were in possession of the sir lands, not as mortgagees of the proprietary right of Rajab Ali, which alone passed to the plaintiff, but as mortgagees of his ex-proprietary rights. He quotes the case of Karamat Khan v. Samiuddin (1886) I.L.R. 8 All. 409 in support of his view. On appeal the District Judge reversed the decree of the lower Court, holding that, inasmuch as no lease was granted of his occupancy holding by Rajab Ali as an ex-proprietary tenant, there was nothing to prevent him from availing himself of the right to relinquish his holding if he chose to do so. "No authority," he says, "has been pointed out for the contention that the defendants respondents became mortgagees of the ex-proprietary rights of Rajab Ali by reason of the proprietary rights of Rajab Ali having been, sold subsequent to the mortgage. The intention of Rajab Ali could never have been to mortgage his cultivatory rights as an ex-proprietary tenant. What Rajab Ali himself did not possess at the time of the mortgage to the defendants he could not transfer. It is therefore not sound to contend that the mortgage by Rajab Ali in favour of the defendants included the mortgage of his occupancy rights as an ex-proprietor as well as his proprietary rights." In another part of his judgment he says: "It cannot for a moment be supposed that the defendants respondents acquired the same rights as Rajab Ali acquired as an ex-proprietor after his proprietary rights had been sold; for such acquisition of occupancy rights was prohibited by Section 9 of the Rent Act." We are unable to agree in the view taken by the learned District Judge. The defendants were in possession of the sir land under and by virtue of their usufructuary mortgage. When Rajab Ali lost his proprietary rights in the sir his tenure was changed, no doubt, from that of a proprietary tenure to an ex-proprietary tenure. Some interest, however, in the sir lands still remained vested in him; but he had already disposed of the usufruct of the land by the mortgages which he had executed in favour of the defendants. These mortgages, we think, attached to, and bound the estate of the mortgagor in its altered condition. Instead of the defendants continuing in possession as usufructuary mortgagees of land held under a proprietary tenure, their possession became that of mortgagees of an ex-proprietary tenure. In no way is the plaintiff, as it appears to us, prejudiced by this; she will be entitled to payment of the rent just as she would have been entitled to receive it from Rajab Ali if the defendant's mortgage had not been in existence; The District Judge says, what Rajab Ali himself did not possess at the time of the mortgage to defendants, he could not transfer. He overlooks the fact that a mortgagee is entitled for the purposes of his security to all such interests as may be acquired either as accretions to or in place of the original interest which was conveyed to him for example, in the case of a mortgage or charge upon lease-holds, if a new lease be obtained by a mortgagor, either on a forfeiture of the original lease or by other means, the owner of the mortgage or charge will have the benefit of the new lease for the purpose of his security, and yet the mortgagor could not at the time of the mortgage have transferred the new lease to the mortgagee as it was not in existence--Moody v. Mathews (1801) Ves. 174 Hughes v. Howard (1858) 25 B. 575, Trumper v. Trumper (1873) L.R. 8 Ch. 870. It appears to us, therefore, clear that the ex-proprietary interest acquired by Rajab Ali in place of his proprietary interest in the sir land became subject to the defendants' mortgages.
3. Assuming this to be so, the next question is whether Rajab Ali was justified in relinquishing his ex-proprietary holding in favour of the plaintiff. In our opinion he was clearly not entitled to do so. It is a well-recognised principle of law that a man shall not derogate from his own grant. The effect of the relinquishment of his tenancy by Rajab Ali, if the relinquishment were valid, would be not merely to impair the security of the defendants, but to altogether destroy it. The principle to which we have referred is recognised in the case of Badri Prasad v. Sheo Dhian (1896) I.L.R. 18 All. 354 in which case it was held that where an occupancy tenant grants a lease of land forming part of his occupancy holding for a term of years, he cannot, during the subsistence of such term, relinquish his holding to the zamindar so as to put an end to his lessee's rights under the lease. The principle applies to the case of a mortgage as well as to the case of a lease.
4. It only remains to consider whether Section 9 of the Rent Act precludes the defendants from relying on the defence which has found favour with the lower appellate Court. It was laid down by a Full Bench of this Court in the case of Khiali Ram v. Nathu Lal (1893) I.L.R. 15 All. 219 that the second paragraph of Section 9 of Act No. XII of 1881 did not apply to a usufructuary mortgage. The learned District Judge evidently overlooked this authority. The present case is unlike the case of Sukru v. Tafazzul Husain Khan (1894) I.L.R. 16 All. 398 in which an occupancy tenant gave a simple, mortgage of his land, and the mortgagee brought a suit on his mortgage, and obtained a decree for sale under Section 88 of Act No. IV of 1882, and upon sale under the decree purchased the land himself, and obtained possession of it. This was clearly obnoxious to the provisions of Section 9 of Act No. XII of 1881, and not binding on the landlord.
5. For the foregoing reasons we allow the appeal, set aside the decree of the lower appellate Court, and restore the decree of the Subordinate Judge dismissing the plaintiff's claim with costs. The appellants will have their costs in all Courts.