JUDGMENT Thom, Ag. C.J.
1. This is an appeal under Section 10, Letters Patent, against the decision of a learned single Judge of this Court. The appeal arises out of a suit on the basis of a simple mortgage. The plaintiff obtained a decree on the footing of the simple mortgage, which was executed by the appellant on 26th July 1922. Under this mortgage, the mortgagor mortgaged certain rights which he had purchased on 4th December 1898 from a lessee under a deed of perpetual lease executed on 18th December 1888. On that date one Maulvi Tafazzul Husain executed a perpetual lease. Under the terms of the lease the lessee was given full power to transfer his rights and it was further provided that the lessee's rights should be heritable and that in no circumstances could the lessee be ejected. Objection was taken to an application for the preparation of a final decree in the mortgage suit. It was contended that the rights of the defendant were not transferable by auction-sale on the ground that the judgment-debtor was an occupancy tenant. The trial Court and the lower Appellate Court upheld this contention. The learned single Judge in second appeal has however reversed the orders of the lower Courts, holding that the rights of the judgment-debtor under the lease of 18th December 1888 and under the sale deed in his favour of 4th December 1898 were liable to be sold in execution of the mortgagee's decree.
2. The learned Judge who disposed of the second appeal appears to have considered that the lease of 18th December 1888 was covered by Section 105, T.P. Act. If this be so, then clearly the lessee's rights are transferable. We do not consider it necessary, in the view we take of the ease, to record any decision upon this point. Whether the rights of the appellant are transferable by auction sale or not depends upon the status he occupies under the terms of the lease of 18th December 1888. In our opinion, he occupies the status of a thekedar. A thekedar is defined in the Agra Tenancy Act of 1926 as:
A farmer or other lassee of proprietary rights in land, and in particular of the right to receive rents or profits.
3. Now, the judgment-debtor by the terms of the lease of 18th December 1888 does certainly hold certain proprietary rights in the land. He has the right to receive rents and profits. Further he may transfer such rights as he enjoys in virtue of the terms of the lease. As already noted, he is not liable to ejectment at any time by the lessor or his successor. A case arising in similar circumstances was decided by a Bench of this Court, viz. Ajodhia Kalwar v. Balkaran (1935) 22 A.I.R. All. 93. In that case it was decided that:
Where the lessor is the lull owner of the plots and professes to grant a perpetual lease of those plots to the lessee with the right to hold possession generation after generation and the right to sell and mortgage the same, and without any right in the lessor to eject the tenants, and premium in received as consideration for the grant of the perpetual lease, the lease must of necessity be a lease of proprietary interest in the land, and the interest of the thekedar is saleable in execution of a decree against him.
4. We find it impossible to distinguish that case from the case now before us. It was contended that, whatever might be the provisions of the lease, the original lessee and his successor, the appellant, had become agricultural tenants and that therefore their rights under the lease were not transferable. In our opinion however, in view of the terms, of the lease, the appellant is not merely an agricultural tenant; he is a thekedar; and by Section 203 of Agra Tenancy Act the rights of a thekedar may be transferable if provision is made therefor in the deed creating the theka. In our judgment, the appellant in this case is clearly a thekedar, holding much higher rights than that of a mere tenant, and his rights are transferable and saleable in execution of a decree. The result is that we dismiss the appeal with costs.