Bose, J—This is a defendant's appeal in suit for redemption and the simple question for decision is whether an occupancy tenant who was created after the mortgage by the mortgagor-malguzar has a right of redemption.

2. One Gangadhar was the sole owner of the property in suit, namely, patti No. 2 of mouza Achhola. He mortgaged it to the defendant's father on 2-6-1932. After the mortgage, Gangadhar issued leases to the three plaintiffs, as follows: On 29-1-1933 to plaintiff 1, on 3-6-1932 to plaintiff 2, and on 3-9-1934 to plaintiff 3. These leases were unregistered and so are inadmissible in evidence; equally, they passed no title. But under the tenancy law of this Province occupancy tenants can be created in other ways, for example, by acceptance of rent and so forth. Accordingly the action of Gangadhar in placing these persons on the land and accepting rent from them had the effect of making them occupancy tenants. That is not denied, and both sides are agreed that the plaintiffs are occupancy tenants.

3. In the year 1939 the defendant sued Gangadhar's sons under the mortgage and foreclosed on 4-4-1939. So far as the fields in suit are concerned he foreclosed only the proprietary interests and made no attempt to disturb the plaintiffs' possession or to question their right as occupancy tenants. In this suit also he admits, and has admitted all through, that they are the occupancy tenants of the plaint property and have the right to remain on the land in that capacity.

4. The plaintiffs were not joined in the mortgage suit, and claim that as they had an interest in the mortgaged property they have a right to redeem, and not having been joined they are not affected by the suit and can exercise their right of redemption in the present suit.

5. Now I have no doubt that ordinarily the mortgagor in possession has a right to make leases which will bind the mortgagee provided they are made in the ordinary course of village management and otherwise conform to Section 65A T.P. Act; nor indeed was that disputed. What was said was that that power did not exist in the present case because it had been expressly abrogated by the terms of the mortgage. It was said that Section 65A (3) provides for this and makes the provisions of Sub-section (1) applicable, ''only if and as far as a contrary intention is not expressed in the mortgage deed.''

6. That brings me to a construction of the document. But before proceeding to that I will pause to observe that when the law fastens terms of its own on to a contract those terms must be read into the deed as if they formed part and parcel of the agreement. It is not necessary for parties to a deed to produce in it terms and conditions which the law imposes upon them. Also, if, as here, a statute imposes conditions which are to apply unless expressly abrogated those conditions will clearly apply whether they are inserted in the deed or not unless and except in so far as, they are expressly abrogated. The relevance of this will be apparent when I deal with a decision of the Judicial Committee in Hansraj v. Bijayalal Seal

7. The mortgage is EX. P-5-A. The relevant passages are these-- I have mortgaged.... without possession.... my family malguzari milkiyat of mouza Achhola, Patti No. 2... together with all rights and privileges and the khudkasht land to the extent of which it--consisting of the old khudkasht land and that received through surrender and ejectment of tenants of the village--is in my holding and possession in the year 1931-32.

8. It was argued as regards this clause that two kinds of property were mortgaged, first the malguzari milkiyat and second the khudkasht, that is to say whatever was khudkasht at the date of the mortgage. With that I have no quarrel, nor was this contested. What was objected to was the inference sought to be drawn from this when read along with the next relevant clause which I now reproduce. It runs: I will not transfer the above mortgaged property to any other person