A mortgagee is not entitled to retain any part of the mortgaged property on the ground that he obtained actual possession of the whole or any part as mortgagee during the continuance of the mortgage, and on redemption, the mortgagee must deliver possession of the mortgaged property to the mortgagor.

SHIV DAYAL, J.

1. This is plaintiffs second appeal in a suit for redemption of agricultural land which was mortgaged on June 28, 1922. The suit was instituted in the year 1946. During the pendency of the suit the Madhya Bharat Zamindari Abolition Act came into force on Oct. 2, 1951. The defendants resisted the suit denying the fact of mortgage. The trial Judge passed a decree in favour of the plaintiffs. The lower appellate Court has reversed it on the ground that the plaintiffs did not prove the land to have been their Khudkasht at the time of the mortgage.

2. It is incontestible that the property having vested in the State by virtue of the Zamindari Abolition Act, no decree for proprietary possession could be passed in favour of the plaintiffs. It is true that in the plaint there is no mention of the suit land having been the Khudkasht of the mortgagors in the year 1922 and it is also true that the plaint was not subsequently amended. However, the defendants did not resist the suit on that ground. The first appellate Court has for the first time dismissed the plaintiffs' suit on the ground that since they did not establish that they had been in cultivating possession of the land in 1922, no decree for such possession could be passed either. I see considerable force in the argument of Shri Dixit that injustice has been done by deciding that question of fact without an issue having been framed and without giving the plaintiffs an opportunity to lead evidence on it.

3. It is also urged by Shri Dixit that whatever may have been the position regarding cultivating possession of the suit property in 1922, the plaintiffs are entitled to a decree for actual possession of the mortgaged land at least to the extent that they are in the mortgagee's actual possession today. Having anxiously considered this proposition I have formed the view that this argument must be given effect to.

4. On general principles a mortgagee is always a mortgagee. Once a mortgage, the mortgagee cannot create an estate for himself out of the mortgaged property. To whatever extent the mortgagee is in possession of the mortgaged land, on redemption he must deliver that possession to the mortgagor. It is true that the mortgagee is entitled to possession unrestricted and undisturbed, as against the whole world except the mortgagor. But when the mortgagor seeks redemption and tenders the mortgage money, at a time when the right of redemption subsists, the mortgagee has neither interest in the property as against him, except the re-payment of the mortgage money.

5. It is enacted in section 60 of Transfer of Property Act that on payment or tender of the mortgage money the mortgagor has a right to require the mortgagee, where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. Section 62 again lays down that in case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property. In section 63 this right is further extended and the mortgagee is bound to deliver possession not only of the property originally mortgaged but also of every accession. So wide being the right of the mortgagor and so defined being the liability of the mortgagee the latter cannot retain any part of the mortgaged property just on the ground that he obtained actual possession of the whole or any part as mortgagee during the continuance of the mortgage.

6. When the relevant provisions of the Qanoon Mal were in force (up to October 1, 1951) a mortgagee was no "tenant" of the lands [see section 2 (27) of the Qanoon Mal] and he could acquire no occupancy rights in the mortgaged land, whatever might have been the period of his cultivating possession. This is enacted in terms in section 250 of the Qanoon Mal

7. The position which obtained on and after October 2, 1951, is also not helpful to the mortgagee. Section 37 of the M. B. Zamindari Abolition Act confers pucca tenancy rights on an ex-proprietor with respect to the