JUDGMENT

W. Comer Petheram, C.J. - The question is, whether a Zamindar, who mortgages his mahal by usufructuary mortgage, and gives possession to the mortgagee, parts with his proprietary rights by that transaction. This of course depends upon what a usufructuary mortgage is. A mortgage of this description is defined by Section 58 of the Transfer of Property Act to be a transfer of an interest in specific Immovable property for the purpose of securing the payment of money, &c., and the mortgagor delivers possession of the property to the mortgagee, and authorizes him to retain possession and receive the entire profits. Under such a transaction it is evident that the mortgagee is entitled to the exclusive possession of the property until the loan is repaid, and becomes, in my opinion, the proprietor of the property during that time, inasmuch as I understand the proprietor of a thing to be the person entitled to the exclusive possession of it at the time. If it be true that the transaction has constituted the mortgagee the proprietor of the property, though only for the time being, it must follow that the mortgagor has parted with his proprietary rights as he has ceased to be proprietor. The difficulty in the case really arises from the decision of a Division Bench of this Court in the case of Bhagwan Singh v. Murli Singh ILR 1 All. 459. Speaking for myself, I can only say that I think that decision is wrong, and that I decline to follow it. In my opinion, the meaning of the Legislature is that when a Zamindar ceases to be entitled to occupy the sir-land as proprietor, he shall have the right to occupy it as an ex-proprietary tenant u/s 5 of the Rent Act. It follows that I answer the question in the affirmative.

Straight, J.

2. I am of the same opinion. The mortgage transaction between the parties to the suit, out of which the reference has arisen, transferred the legal estate in the zamindari to the mortgagee, and entitled him to possession thereof to the exclusion of the mortgagor, which possession can only be terminated by surrender of his document of title and reconveyance either voluntarily made or enforced through the medium of a redemption suit. It is true that the words "lose" and "part with" in Section 7 of the Rent Act have no special legal significance, but they appear to me to have been intended to cover all cases in which a proprietor of land has either voluntarily or by operation of law deprived himself permanently or temporarily of the power to exercise full proprietary right over his property. The mischief at which this provision of the statute aimed is too well understood to need repetition here, and I can only add that if a usufructuary mortgage be held not to be a "losing" or "parting with" the proprietary right, then in future a usufructuary mortgage will invariably be resorted to instead of a sale, so as to defeat the ex-proprietary right,

Mahmood, J.

3. In this case I have arrived at the same conclusion as the learned Chief Justice and my brother Straight, but as the grounds of my conclusion are, though in a very small degree, different from those which they have stated, I think it necessary to explain my own reasons. Before I can go into the question referred to the Full Bench, it is necessary to consider the meaning of the words "proprietary rights" in Section 7 of the Rent Act (XII of 1881). I understand these words to be equivalent to the term "ownership," which is not merely a word of technical legal meaning, but which, I hold, must, according to the general canons of construction, be interpreted in its broadest possible meaning in the absence of words to restrict such interpretation. In that light, the idea of full ownership corresponds to what, in the Roman Law, is termed a "dominium," or to what, in the English Law, is called the "fee simple estate." This has been denned by Austin in the following manner: "The idea of absolute property is a right indefinite in point of user, unlimited in extent of durati