BRIJ MOHAN LALL, J.

( 1 ) THIS is a revn. by the mtgees. against whom a claim for redemption Under Section 12, U. P. Agriculturists Relief Act (XXVII [27] of 1934) has been decreed by both the Cts. below.

( 2 ) IT appears that Hira Lal, Naubat Singh and some other persons were co-sharers in a proprietary khata in village Sikri of Pargana Jalalabad in the district of Meerut. By an arrangement of convenience arrived at between the co-sharers Hira Lal was in exclusive possession of an area of one bigha of joint Khata consisting of plots NOS. 976 (present No. 1035) and 982 (present No. 1036), These two plots measured 15 biswas and 5 biswas respectively.

( 3 ) ON 2-7-20 Hira Lal executed a possessory mtge. of the aforesaid two plots in favour of Naubat singh and Ranjit and put the mtgees in actual physical possession of the said two plots. In sub-sequent years these plots came to be recorded first as Naubat Singhs Khudkasht and later on as his sir. Sometime afterwards Naubat Singh applied for partition in revenue Ct. Partition proceedings continued for several years and were finally confirmed on 19-9-32. As a result of these proceedings, Naubat Singhs share was completely separated and formed into a separate khata which bore No. 25. Thus Naubat Singh became sole proprietor of the entire land in this khata. The two aforesaid mortgaged plots were also included in this Khata.

( 4 ) HIRA Lals entire proprietary rights consisted of one bigha. This area was not sufficiently large to form a separate Khata. Therefore, he and several other petty co-sharers were grouped together and they were allotted shares in a separate Khata which was numbered 38. In this Khata Hira Lal was shown as owner of one bigha share and the said share was shown subject to a mtge. in favour of Naubat Singh and Ranjit.

( 5 ) IN 1946, Hira Lal started the proceedings which have given rise to this revn. for redemption of the mtge. of 1920. He claimed that on payment of the amount due from him he might be delivered possession over the aforesaid two mortgaged plots. Naubat Singh (who is since dead and is represented by his sons) had no objection to redemption being made. But he contended that as a result of this redemption Hira Lal would not be entitled to secure possession over the aforesaid two plots which had by partition been allotted to his Khata as his exclusive property. According to his contention, the result of redemption would be the release of one bigha share of Khata No. 38 from encumbrance.

( 6 ) BOTH the Cts. below have overd. this defence and have awarded possession to Hira Lal over the two specific plots which had been mortgaged by him in 1920.

( 7 ) I have heard the learned counsel on either side and I am of the opinion that the view taken by the Cts. below is erroneous. The question involved in this case related to the law of substituted security. The attention of neither of the two Cts. below appears to have been drawn to this aspect of the case. Both. Cts. have discussed Section 23 (SIC) (k), Land Revenue Act. There was no reference to this section in the written statement. But it seems that perhaps the learned counsel representing the mtgees. raised the point at the time of arguments.

( 8 ) IF a mtgee. accepts as security a property which is owned jointly by his debtor along with other and if, as a result of a subsequent partition, the said property is allotted to the share of the debtors cosharer, the mtgee. cannot pursue that property any more. He has to be content with the property which is allotted to the share of his debtor. The mtge. is transferred from the property originally mortgaged to the property allotted to the mtgors share at the time of partition. It is this latter property which gets impressed with the mtge. and the property originally mortgaged gets free from the mtge. Just as the mtgee. cannot pursue the property originally mortgaged, similarly the mtgor. also cannot, after the partition, treat the property originally mortgaged as

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