Mahabal Singh And Anr. vs Ram Raj And Ors. on 10 April, 1950
6. On the merits, however, I am of opinion that this appeal cannot succeed. The mortgage of a tenancy holding, like the holding in the present case which was a hereditary tenancy, is not transferable under the provisions of the U. P. Tenancy Act and was also not transferable under the Oudh Rent Act. The mortgage was, therefore, void. But the mortgagee, having come into possession of the plots with the permission of the mortgagor, could not be said to be a trespasser unless the permission were withdrawn. In the case of a void mortgage the mortgagor is entitled to recover back possession over the mortgaged property in his capacity as the owner of the mortgaged property. The mortgagee is, no doubt, in defence, entitled to claim that the mortgagor should not be given unconditional possession over the mortgaged property but should be given possession subject to the condition that he pays to the mortgagee what is due to him upon the mortgage. This has been now finally decided by a Full Bench of this Court in Mahabal Singh v. Ram Raj, (1950 ALL. L. J. 713). Thus, though the mortgagor has to pay the amount due to the mortgagee, he is not thereby prevented from recovering possession over the mortgaged property treating the mortgage as a void mortgage and the defendant mortgagee as a trespasser. The institution of a suit for possession against the mortgagee is enough to terminate the licence under which the mortgagee must be deemed to have held the property when his mortgage was void. When the licence was thus terminated and the position of the mortgagee became that of a trespasser, a suit under Section 180, U. P. Tenancy Act could be brought against the mortgagee when the mortgaged property consisted of tenancy plots. The terms of S. 180 are fulfilled because the mortgagee will be retaining possession over the property "without the consent of the person entitled to admit him as tenant".