( 1 ) THE fundamental question common to the revision and the two connected second appeals relates to the legal effect of a mortgage of tenancy or occupancy rights by a tenant and to the relief, if any, which can be granted to such a mortgagee in a suit brought by the mortgagor. There is also a question as to the appropriate form of action. The controversy arising in these cases will be clearer by a statement of facts in each case. I shall first take up the revision application.

( 2 ) THIS application arises out of proceedings under Section 12, Agriculturists Relief Act and has arisen in the following manner. On 13th October 1900, Ram Adhin and Drigbijai Singh mortgaged an occupancy holding to Sheo Narain for Rs. 1000/ -. The original mortgagors and the mortgagee are dead and are represented by their heirs and legal representatives. The representatives of the mortgagors filed an application under Section 12 for redemption of the mortgage and they claimed redemption on the ground that the entire mortgage money had been satisfied out of the usufruct of the property. The principal defence was that Section 12 did not apply to the case and the application was not maintainable. The issue framed on this point was whether the mortgage deed was void ab initio being in respect of the occupancy tenancy under section 5, Avadh Rent Act.

( 3 ) THE Munsif before whom the application was filed held that the land was rot an occupancy holding under Section 5 and therefore the mortgage was not void. He allowed redemption upon payment of Rs. 400/ -. The lower appellate Court reversed the view of the trial Court and held that occupancy rights were transferred by mortgage and that the mortgage was void Under section 5 and, having regard to the view held by the Chief Court of Avadh that Section 12 applied to valid mortgages only, it rejected the application as being not maintainable. The applicants filed the present revision application. As the connected second appeals raising a similar question had already been referred to the Full Bench, it was requested by both counsel that the revision should also be referred to the Pull Bench and heard along with those appeal.

( 4 ) AT the outset, counsel for the mortgagee attempted to argue that the revision application was not competent, as the lower appellate Court had jurisdiction to take any view of the law as it thought fit. This contention is no longer open to counsel, as when the matter came up for the first time on 1st February 1950, he agreed with the mortgagors counsel that the revision raised a question which was fit for reference to the Full Bench. Apart from this, there is no force in the contention on the merits either. There is clear case of jurisdiction involved in the case whether section 12 does or does not apply to invalid mortgages.

( 5 ) BEFORE dealing with the conflict, real or apparent, between the views of the late Chief Court of avadh and the Allahabad High Court before the amalgamation of the two Courts, it would perhaps be desirable to refer to the Avadh cases on the point.

( 6 ) IN Dasrath v. Mt. Sandala. 3 O. W. N. 217 : (A. I. R. (13) 1926 Oudh 270) a Bench of the chief Court held that the mortgage of a simple tenancy holding is unlawful, being opposed to the whole spirit of the tenancy law, and the mortgagee is not entitled to the return of the money forming the essence of the consideration for the mortgage transaction, but he would be so entitled if the amount mentioned in the mortgage deed as consideration constitutes an independent transaction of loan between the parties. In this case the suit was brought by the mortgagee. The learned Judges referred to the observations, in relation to the alienation of an ex-proprietary holding in the Agra province, of the Privy Council in Moti Chand v. Ikram Ullah khan, 44 I. A. 54 : (A. I. R. (3) 1916 P. C. 59) :

"all such devices, arrangements and agreements are in contravention of the policy of the Act and ate contrary to