JUDGMENT

1. This is the plaintiff's appeal from the decree of the Subordinate Judge of, Gonda, dated 3rd August 1931, reversing the decree of the Mun-sif of Utraula, dated 28th November 1930, In the suit out of which this appeal arises, the plaintiff asks for a decree for sale of a 1-anna 3-pies zamindari share situate in the village of Agia, tahsil Utraula. in the district of Gonda, and in the alternative for a decree for possession of the same on the basis of a deed of mortgage dated 16th May 1918. The deed was executed by one Imdad Husain in favour of Earn Khilawan, the plaintiff. Imdad Husain has since died and the defendants to the suit are his heirs in possession of the property in question. The Court of first instance gave a decree to the plaintiff for sale of the mortgaged property. On appeal by the defendants however the learned Subordinate Judge set aside the decree of the Court of first instance and in lieu thereof granted a decree for possession. The question which the learned Subordinate Judge has decided is formulated by him in the following words:

Whether the plaintiff is entitled to get a decree Jor sale of the mortgaged property according to the terms of the deed.

2. In answering this question he first held that the deed of mortgage in suit evidenced a usufructuary mortgage pure and simple. Then he found that the mortgage was not accompanied with delivery of possession of the mortgaged property to the mortgagee. To those premises he applied the law contained in Section 58, Clause (d), T.P. Act, 1882, as amended by Act 20 of 1929, and came to the conclusion that the plaintiff is entitled to a decree for possession only. As to the Full Bench decision in M. Sub-bamma v. G. Narayya, (1918)41 Mad 259 the learned Subordinate Judge's opinion was that it ceased to be good law since the amendment referred to above. The second ground of the learned Subordinate Judge's decision is that the personal covenant on the part of the mortgagor, contained in the deed of mortgage to repay the mortgage money in the event of any disturbance in the mortgagee's possession did not entitle the plaintiff to a decree for sale.

3. In applying the law as amended to this case the learned Subordinate Judge overlooked the facts that the amendment does not govern transactions entered into and rights and liabilities created before the passing of the the Amending Act of 1929: vide Section 63, Act 20 of 1929. The deed of mortgage in suit was executed, as we have already said, in May 1918. The relief therefore which the plaintiff prays for cannot be restricted to the decree for possession only and his right must be determined with reference to the law as it stood before the passing of'the Amending Act of 1929. In the Madras case (supra) it was held that where a mortgagor fails to deliver possession to his mortgagee, the mortgage is not a usufructuary mortgage within the meaning of Section 58 (d), T.P. Act, and the mortgagee is entitled to bring a suit for sale of the mortgaged property. If this view means that delivery of possession physically must accompany the execution of the mortgage, with great respect we are unable to follow it. Clause (d), Section 58, T P. Act, before it was amended, stood as follows:

Where the mortgagor delivers possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage money, and to receive the rents and profits accruing from the property and to appropriate them in lieu of interest, or in payment of the mortgage money, or partly in In lieu of interest and partly in payment of the mortgage money, the transaction is called an usufructuary mortgage and the mortgagee as usufructuary mortgagee.

4. We are of opinion that the requirements of law will be satisfied if the mortgagor delivers such possession to the mortgagee as the mortgaged property is capable of on the date of the mortgage. The contrary opinion would seem to exclude a possessory mortgage from the