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 propriet