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"That Section 4(d) of the Land Reforms Act has not the effect of destroying the entire mortgage and does not bar the entire remedy of the mortgagee is plain enough. It is well to remember that this Act deals only with the interests of proprietors or tenure holders. So far as the occupancy holdings of raiyats are concerned, they are outside the scope of this Act. Now, suppose a person has borrowed money on the security of 100 bighas of his bakasht land and a fractional share or proprietary interest which fetches only a nominal income. On the enforcement of this Act the proprietary interests will now vest in the State. The occupancy holdings, however, will remain with the tenants. Now. can it be said that the mortgagee cannot enforce his mortgage against the raiyati lands : I think the answer is an emphatic no. There is nothing in this Act to bar the remedy of the mortgagee to enforce his mortgage against the raiyati lands. It is true that the proprietary share is no longer available by virtue of Section 4(d) since the estate has vested in the State tree from encumbrances. There is no law, however, to debar a mortgagee from realising his mortgage debt from the lands which did not vest in the State under the provisions of the Act. In such a situation one cannot force the mortgagee to seek his remedy as provided in Section 14 of the Land Reforms Act and to satisfy his mortgage debt out of the compensation payable under the Act. It is also sufficiently obvious that in such a case the option rests with the mortgagee either to proceed against the property not covered by this Act or against compensation payable under this Act in the manner laid down therein. It is for him to decide what course will best serve his purpose. But, I see no warrant for the contention that he must be forced to pursue the remedy provided m the Act. The resultant injustice from such a construction is too clear to require a detailed discussion. If I am correct in this view, there is no reason why the mortgagee will be debarred from pursuing his remedy against the lands which were part of the estate but has been statutorily settled with the proprietor or tenure holder by virtue of Section 6 of the Act. If the mortgage security consists of an estate yielding cash income and comprising bakasht lands, there is no reason why the mortgagee will be forced to confine his remedy only to the compensation payable and not to enforce the mortgage against the bakasht lands simply because on the Vesting of the estate they changed their character and constituted the raiyati lands of the expropriator or ex-tenure holder. In principle, I see no difference between bakasht lands as such and the lands which were originally raiyati lands. It is true that under Sections 3 and 3A the entire estate or tenure vests in the State of Bihar absolutely and not only the right, title and interest of the proprietor or tenure holder vide S. N. Chaudhury v. State of Bihar, 1957 BLJR 72: ((S) AIR 1957 Pat 226) But the word 'vest' docs not imply that after the date of vesting no interest at all is left with the ex-proprietor or ex-tenure holder. What actually vests is the subject-matter of S. 4. It deals with the consequences which ensue on the vesting of the estate. It provides that the estate shall with effect from the date of vesting vest absolutely in the State free from all encumbrances. This general provision is subject to qualification enacted in clause (a) of Section 4. This clause provider further that the proprietor or tenure holder after the vesting shall cease to have any interests in the estate or tenure, other than the interests expressly saved by or under the provisions of this Act. One of the interests saved is what is laid down in Section 6 of the Act, namely, that bakasht lands will continue to remain in possession of the ex-proprietor or ex-tenure holder, but not in the character of bakast lands but as raiyati lands. They will cease to be proprietors and they will be regarded as raiyats of such lands from or after the date of vesting. Therefore, the combined effect of Sections 3, 3A, 4 and 6 is that the lands in cultivating possession of the intermediaries do not vest absolutely in the State but remain with the intermediaries and will be deemed to be settled with them. In other words, since after the date of vesting they will hold such lands not as proprietors or tenure holders but as raiyats. The State will not be entitled to resume Khas possession of such lands notwithstanding the fact that the estate has vested as provided in Sections 3 or 3A and 4 of the Act. The right of the State is restricted only to realisation of rent that may be assessed in such lands in accordance with the provisions of the Act. The net result is that such bakast lands remain with the proprietors although in an altered character......... In other words, the interests which are expressly reserved to the proprietors or tenure holders under the provisions of this Act are not affected by Section 4(d), with the result that the mortgage in respect of such interests will remain intact. In my considered opinion, the effect of Section 4(d) read with Sections 3 and 6 of the Act is not to destroy the mortgage in its entirety, but only with respect to that part of the estate which has vested absolutery in the State and no interest therein is left with the mortgagor proprietor or tenure holder. In other words, the mortgage remains operative so far as the lands covered by the provisions of Section 6 are concerned as also the lands not coming within the mischief of the Act, such as the original raiyati lands......... The State does not take over the bakasht lands of the proprietor, for, the interest in bakasht lands is saved under Section 4(a), and under Section 6 it is retained by the proprietor. There is transmutation in the nature of the title. It must become a substituted security, and the altered title becomes available for the mortgagee to operate upon."

This observation focuses the distinction between the case before the Full Bench and the case before the Supreme Court. In fact, the attention of their Lordships of the Supreme Court was drawn to the decision of the Full Bench, and they declined to express any opinion on the correctness or otherwise of that decision. To quote their own words :

"In AIR 1958 Pat 630, the Full Bench of the High Court had occasion to consider whether a mortgagee decree-holder of the interest of the proprietor whose estate has vested in the State, is entitled to proceed against the Bakasht lands of the proprietor comprised in the said estate for recovery of the amount due to him under the mortgage decree, and it was held that in such, a case, the mortgagee cannot be forced to seek his remedy under Section 14, and to satisfy his mortgage debt out of the compensation payable under the Act. It appears that the Full Bench was inclined to take the view that the interest of the judgment-debtor in the bakasht lands was one of the interests saved by S. 6 and that, in consequence, the bakasht lands continued to remain in the possession of the exproprietor not in the character of bakasht lands but as raiyati lands, and since these lands were a part of the security offered by the mortgage-deed the decree-holder was entitled to proceed against them without taking his remedy under Section 14 of the Act. This conclusion was based on the view that the effect of Section 4(d) read with Sections 3 and 6 of the Act was not to destroy the mortgage in its entirety but only with respect to that part of the estate which had vested absolutely in the State and no interest therein is left with the mortgagor proprietor or tenure holder. It is conceded by Mr. the that this decision also proceeds on the assumption that the mortgage security consists of an estate which has vested in the State and of bakasht lands which did not, in substance, vest in the State but continued with the mortgagor as raiyati lands. Therefore, it is not necessary for us to examine the merits of the conclusion reached by the Full Bench in this case."

It will be observed that the main decision of the Full Bench that the bakasht lands continued to remain in possession of the intermediaries even after the vesting of the estate, not in the character of bakasht lands but as raiyati lands, and since these lands were a part of the mortgage security, they were available for satisfaction of the mortgage debt, without following the remedy under Section 14 of the Bihar Act is not at all shaken by the Supreme Court; rather, their Lordships have referred to this part of the reasoning of the Full Bench and have refrained from expressing any opinion one way or the other. In the face of the unequivocal observations of their Lordships of the Supreme Court, it is difficult to accept the contention that the decision of the Full Bench is no longer a good law. It was emphasised that their interpretation with respect to the scope and effect of Section 4(d) had indirectly overruled the decision of the Full Bench, notwithstanding their observations to the contrary. The construction put upon Section 4 (d) by the Supreme Court cannot be considered in the abstract, divorced from the facts of that case. As has been pointed out by their Lordships more than once, they were considering a case where the whole of the mortgaged property had vested in the State. It is obvious and beyond controversy that where the entire mortgaged property forming an estate or tenure vests in the State, the mortgagor has no remedy except by an application under Section 14 of the Bihar Act. He cannot enforce the mortgage in any other way, and the remedy available in a Civil Court is barred under Section 4(d). Where the mortgaged property is divisible into two -- one that has vested and the other that has not vested-- it is outside the ambit of the principles laid down by the Supreme Court. If the bakasht lands are deemed to remain with the mortgagor-landlord, although in a transmuted character, and by operation of Section 6 of the Bihar Act such lands are regarded as an interest in the estate that has been saved and is retained by the landlord, then it cannot be regarded as, and in fact it is not, a part of the estate which has vested in the State and of which the State becomes the absolute owner. The decision of the Full Bench proceeds on the basis that the bakasht lands are distinct and separate from the estate proper that has vested in the State and despite the vesting, the mortgagee will be entitled in law to proceed against the bakasht lands for realisation of the mortgage dues. That is the important ratio decidendi of the Full Bench decision, and this part of that decision, it will be noticed, is not at all affected by pronouncement of their Lordships of the Supreme Court. Nowhere has the Supreme Court laid down that the bakasht lands are in no case available to the mortgagee. If the bakasht lands are deemed to be different from the estate that has vested, as held by the Full Bench, and the Supreme Court has not pronounced to the contrary, the inescapable conclusion is that such lands do not come within the mischief of Section 4(d) and can be proceeded against for satisfaction of the mortgage debt.