Mohamad Noor, J.

1. This appeal is by the defendants in a suit in which the plaintiffs claimed recovery of possession of 21.26 acres of land of village Sonebarsa Prayagpatti and Trandihri recorded in khata No. 20 as bakasht landlords.

2. The plaintiffs are the 16 annas proprietors of the village. For many years the village had been in the zarpeshgr lease of the defendants and their ancestors. The last of such lease was from 1314 to 1326 under a deed, dated 1st December 1905, in the names of Arhat Rai and Nageshwar Rai who, according to the plaintiffs, were members of the joint Hindu family of the defendants. There was however a stipulation in the lease that it would continue till the zarpeshgi money was paid. The Courts of Wards, who managed the plaintiffs' estate, redeemed the zarpeshgi lease in 1919 and got sir possession of the village, but when an attempt was made on behalf of the plaintiffs to take possession of the lands in suit, which are alleged by the plaintiffs to he the bakasht lands of the malik and were recorded as such in settlement records after contest, there was resistance on behalf of the defendants. The criminal Court prohibited the defendants from interfering with the plaintiffs in respect of the two plots, viz., 68 and 225 and restrained the plaintiffs from going near the other plots. The defendants there upon dispossessed the plaintiffs from the lands of the entire khata. They therefore seek to recover possession of the land with mesne profits. The suit was instituted by the plaintiffs' father represented by the Court of Wards and on his death during the pendency of the suit, the present plaintiffs were substituted in his place.

3. Two sets of written statements were filed: one on behalf of defendants 1, 3 to 10, 13 and 14 and another on behalf of defendants 2, 11 and 12. The defendants in the first set are the descendants of Arhat Rai and in the second that of Nageshwar Rai, the two persons in whose names the zarpeshgi leases stood and for the sake of brevity I shall call them Arhat and Nageshwar's branch respectively. Their defence is almost common. They deny that Arhat Rai and Nageshwar Rai were joint or that the defendants are members of a joint family and assert that one branch is not bound by the acts or admissions of the other. They among them claim the entire area covered by the suit except plots 803 and 806 to be their occupancy holdings.

4. The lands of khata No. 20 which is the subject-matter of the suit are 21.26 acnes in area and consist of the following 27 plots: 32, 56, 58, 59, 61, 68, 80, 143, 147, 184, 188, 221, 225. 415, 421, 423, 429, 446, 527, 554, 617, 648. 803, 806, 871, 903 and 913. Out of these 27 plots thirteen plots, namely, 32, 58, 59, 61, 68, 80, 188, 225, 415, 554, 871, 903 and 913, of which the area according to the local measurement is about 17 bighas odd are claimed by Arhat's branch. They claim 9 bighas odd as their ancestral raiyati lands and 7 bighas odd as having been purchased by them under three deeds of sale dated 3rd July 1901, 6th June 1906 and 8th January 1908 in favour of Biseshwar Rai, son of Arhat Rai. The area covered by each of the sale deeds and the price paid for it are as follows:

Area.
Bighas Kathas Phurs Price paid.
1. Ex. C 4 2 0 Rs. 170-0-0
2. Ex. D 2 10 [LQ/GujHC/1991/157] 0 Rs. 109-0-0
3. Ex. G 1 2 10 [LQ/GujHC/1991/157] Rs. 89-0-0
Total 7 14 10 Rs. 368-0-0
5. There is however some discrepancy in the area covered by the sale deeds as mentioned in the written statement. Nageshwar's branch claimed 12 plots, viz., 56, 143, 147, 184, 221, 421, 423, 429, 446, 527, 617 and 648 amounting to 17 bighas 6 kathas 10 dhurs as having been purchased by them under two sale deeds, dated 22nd June 1901 and 16th July 1900 in favour of Nageshwar himself. The area and the price paid for each sale deed are as follows:

Area
Bighas Kathas Dhurs Price paid.
1. Ex. E 7 0 0 Rs. 400- 0-0
2. Ex. F 10 6 10 Rs. 475-10-3
Total 17 6 10 Rs. 875-10-3
6. Exhibit F was torn and portions were lost. We therefore took into evidence a certified copy of it (Ex. Ap. X) from which the date and the boundaries can be found out. The number of plots therefore claimed by the two sets of defendants comes to 25. At first Nageshwar's branch claimed plots Nos. 803 and 806 also in their written statement but afterwards by an amending petition asked those plots to be expunged from their written statement. (The translation of the petition of amendment, dated 30th July 1930, printed in the paper book is not correct. They asked the two plots to be expunged, and not that one should be substituted for the other). The learned Subordinate Judge seems to have passed no orders in respect of these two plots. It is to be noticed that during the settlement operations these two plots were also claimed by Nageshwar's branch.

7. The main questions for consideration before the learned Subordinate Judge, as they are before us, were: (1) Whether any land in suit is covered by the sale deeds set up by the defendants and can they retain them after the redemption of the zarpeshgi lease (2) Whether the defendants have occupancy right in any of the plots in dispute

8. The learned Subordinate Judge has answered the second question in the negative. Regarding the first question he has held that the defendants established the identity of plots Nos. 188, 56, 143, 423, 429, 446 and 527 with some of the lands covered by the sale deeds relied upon by them, but held that these lands were accession to the mortgaged (zarpeshgi) property and the plaintiffs were entitled to them on payment of proportionate price which, the defendants paid in respect of them. He has therefore passed a decree in respect of these plots in favour of the plaintiffs on condition of their depositing Rs. 625-8-0 payable to the defendants. As I have said, no order has been passed in respect of the two plots Nos. 803 and 806 which though included in khata No. 20, and subject-matter of the suit, were not claimed by any of the defendant. For the remaining plots he has given the plaintiffs an unconditional decree. He found plot No. 59 to be covered by the sale deed (Ex. G, but as this deed was after the zarpeshgi of 1905 he did not give the defendants any compensation in respect of it. The defendants have preferred this appeal.

9. The main argument on behalf of the appellants has been to the effect that the learned Subordinate judge, has erred in holding that the lands purchased by the defendants were an accession to the mortgaged property. He has found that the defendants were members of joint family and therefore the whole family were mortgagees and that the lands were purchased by the family. This finding is attacked. It seems that by some mistake the learned Subordinate judge did not formally exhibit a partition deed of the family, dated 24th March 1890. An application was made to us for exhibiting this document, and under our order, dated 21st December 1934, we took this paper into evidence (Exhibit Ap. B). This document is an old one and is torn at various places, In order to help us in reading the document we have also exhibited a certified copy of it which has been obtained from the registration office (Exhibit Ap. C). This deed clearly establishes that the family of Arhat and Nageshwar separated so far back as 1890 and were separate when the zarpeshgi lease of 1905 was obtained and also at the time of the previous lease in 1896. The finding of the learned Subordinate Judge in this respect is not correct. This however makes no difference in the relations of the parties. The leases were in the names of both Arhat and Nageshwar the heads of the two families, and it is clear that each took the lease for the benefit of his own family. It was not denied by the defendants that the entire family of both the branches were interested in the lease nor was it claimed that the purchases of the lands were the personal acquisitions of Biseshwar and Arhat. Rather the two branches claim the land as belonging to the respective families. It must therefore be held that it was the lessees who acquired these occupancy lands during the term of their leases. The important term of the lease on which reliance is placed by the plaintiffs-respondents, ran thus:

It is further laid down that should the thikadars get the kasht land of any tenant sold for arrears of tent, and bring it into their possession, it would remain as Sir zirait, and I (meaning thereby the lessor) shall bring it into my possession on my paying the amount as given in the account and the sale certificate. If the thikadars take possession of the kasht land of any tenant by any other means, and if they convert the ridge of an ahar, etc., into their kasht, they shall cease to have any right thereto on the expiry of the term of the thika, and the same shall pas into the possession of me, i.e., the proprietor of the village.
10. The term makes it perfectly clear that the defendants' family cannot hold any land of any raiyat if they acquire it during the term of the lease. The sale deeds occupy the following chronological position: Ex. F, 16th fitly 1900. Ex. E; 22nd June 1901. Exhibit C; 3rd July 1901. Ex. D; 6th June 1903. Ex. G, 8th January 1908.

11. The defendants can have no right whatsoever in the land covered by Ex. G. as they purchased it during the continuance of the last lease and also because the sale was after section 22. Ben. Ten. Act, was amended providing that:

A person holding land as an ijaradar or farmer of rent shall not, while so holding, acquire, by purchase, or other wise a right of occupancy in any land comprised in his ijara or farm.
12. In fact it was conceded by Mr. S.M. Mullick as it was conceded before the lower Court that the defendants have absolutely no case in respect of the land covered by this deed. Ex. D was after the lease of 1905. The lease was to commence from 1314 presumably from Asin (corresponding to September 1966). The term of the lease had not commenced when this deed was taken. The other three deeds were of date prior to the last lease of 1905. The question for consideration therefore is what is the position of the defendants in respect of the lands covered by these deeds (Exs. C, D, E and F). It is contended on behalf of the appellants that there is nothing to show that the previous lease contained terms like the one which I have stated above. It is however clear from the lease of 1905 that it renewed the former lease with an additional zarpeshgi of Rs. 1,400, the former zarpeshgi being Rs. 3.600 and most likely the terms of the previous lease were similar to those of the one which was granted in 1905. Even if they were not so the plaintiffs are entitled to claim, independent of the terms of the lease, that the acquisition, of the occupancy rights, of the raiyats by the lessees (who were mortgagees) should be treated as an accession to the mortgaged property. S. 63, T.P. Act, lays down that:

Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, received any accession, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled as against the mortgagee to such accession.
13. Mortgagee's acquiring occupancy rights is an accession to the property. As the learned Subordinate Judge has pointed out, the lands must be taken to be non-transferable occupancy holdings of which the transfer can only be effected with the consent of the landlord, unless there is custom to the contrary. The mortgagees were at the time of these transfers exercising the power of the landlord and they consented to the transfer to themselves. Therefore they acquired these lands by exercising the power of the mortgagees and it must be held that they held these lands for the benefit of the mortgagors, subject to their being indemnified for the price paid. It has been contended before us on behalf of the appellants that these purchases were not accessions. First of all, it is argued that they were separate acquisitions of each of the two separated families and were kept apart from the leasehold property. Reliance is placed upon the fact that in the jamabandi papers the purchasers were shown as raiyats and rents realised from them for which receipts were granted. I am unable to accept this argument. Both the families were mortgagees. The mention of the purchasers as raiyats and grant of the receipts to them will not in any way affect the right of the plaintiffs. It was purely a family transaction and they could show it in any way they liked. The zarpeshgi lease was taken by the two families. Both the families were therefore mortgagees. Both were bound by the terms of the deed and also by the law which governed their liabilities. The two families by acquiring occupancy lands separately can have no better right in them than what they had if they had acquired them jointly.

14. This case seems to be on all fours with the case of Moghab Pande v. Ragho Pande, 1929 Pat 730 [LQ/PatHC/1929/202] = 118 I C 314 where it has been held that occupancy holdings are not transferable as a general rule; they are transferable by custum or local usage, and therefore when a mortgagee in possession of a tenure purchases a non-transferable occupancy holding, the holding is an accession to the mortgaged tenure. There is no evidence in the case before us theft in the village in question there is a custom of transferability of holdings without the consent of the landlord. Therefore it must be held that the mortgagees acquired the occupancy right by the exercise of their power as mortgagees.

15. The learned advocate for the appellants relied upon Sarabjee v. Dwarkadas Ranchhoddas, 1932 P C 199 = 133 I C 557 = 59 I A 366 (P C). In that case their Lordships dealing with S. 63, T.P. Act, and S. 90, Trusts Act, held on the facts of that case that the acquisition by the mortgagee was not an accession to the mortgaged property. In that case the mortgagee had acquired occupancy rights for his own benefit without availing himself of his position as mortgagee. The facts were these: One Rajaram mortgaged with possession in 1908 four annas of a certain village along with some other properties to the predecessors of defendants 1 to 4 of that suit. Two out of the four annas share of the village was subsequently sold to the mortgagees themselves in 1912; one anna was sold in Court auction and purchased by defendant 5, and the remaining one anna was acquired by the plaintiff who sought the redemption of the mortgage. The suit related to two plots of the village only, namely, plots 451 and 452 for which redemption was disputed by the mortgagees. Plot No. 452 was acquired by the mortgagees some two years before the mortgage from a brother of the mortgagor who also held a four annas share in the village and sold to the mortgagees the full proprietary right in this survey number. After the mortgage of 1908 they obtained the tenancy right of that survey number from the tenant concerned. The tenant of survey plot No. 451 acquired the full proprietary right in that plot from Rajaram's uncle, who held the remaining 8 annas of the village and then sold it to the predecessor of the defendants Nos. 1 to 4 who had supplied funds for the acquisition. Their Lordships observed as follows:

In their Lordships' opinion these occupancy rights were acquired by the mortgagees of Rajaram's share, who were also co-sharers with him in the manza, for their own benefit, and to give the plaintiff any claim to them as the owner of a one anna share in the mouza it was incumbent on him to show that they were acquired under such circumstances as to bring them within the provisions of S. 90, Trusts Act, No such case was set up in para. 10 and Sch. K of the plaintiff's rejoinder in which those occupancy rights are claimed as accretions to the suit mortgage, no issues have been framed in regard to it and it has not been considered or decided in the lower Courts.
16. It is obvious that in the case before the Judicial Committee the occupancy rights in the two plots were not acquired by virtue of the position which defendants 1 to 4 held as mortgagees. The next contention of the learned advocate on behalf of the appellants has been that the appellants were not mortgagees; they were only lessees and therefore S. 63, T.P. Act, has no application. I am unable to accept this contention. The lease of 1905 clearly shows that the defendants were mortgagees of the village. The zarpeshgi lease may be a mortgage as well. No hard and fast rule can be laid down for deciding whether a particular transaction is a lease, pure and simple, or whether it is also a mortgage. The important criterion is whether there was a loan and the property transferred was as security for the payment of the principal or interest of the loan. The deed of zarpeshgi lease of 1905 makes this perfectly clear. Rs. 3.600 was the loan due to the lessees under a previous zarpeshgi lease, and Rs. 1,400 was taken as loan at the time of execution of the lease. Provision was made for the realisation of interest on Rupees 5,000 from the income of the village and the balance was to be paid TO the lessors. This Rs. 5.000 is spoken of in the deed as rehan money, which clearly, means mortgage money. The lessees were to remain in possession of the village till the loan was paid up. The money paid was not paid by a tenant to the landlord, but by a creditor to a debtor. I have no doubt therefore that the lease of 1005 was not only a lease but also a mortgage.

17. The earlier lease must also be held to have been a mortgage. It is spoken of in the later deed as zarpeshgi lease and Rs. 3,600 is also spoken of as a loan. The term of the earlier lease was to expire in 1912, but it appears that on account of non payment of the money it continued and there must have been a stipulation that the lessees would continue in possession of the property till the loan is paid up. I therefore hold that the defendants were mortgagees under the previous lease also and they acquired the occupancy rights under deeds, Exhibits C, D, E and F as mortgagees. Assuming however that they were not mortgagees but simply lessees, the position will be exactly the same as they acquired these occupancy rights by the exercise as landlord of the power of consenting to the transfer of a non-transferable occupancy holding. S. 90, Trusts Act, runs thus:

Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.
18. A lessee is a qualified owner of the property inasmuch as he exercises the power of the landlord during the continuance of his lease and can give his consent to transfers and therefore if he gains any advantage in derogation of the interest of the superior landlord he holds that advantage for the benefit of the latter. No doubt, the Trusts Act was enforced, in this Province in August 1913 only and the acquisitions of the occupancy rights were before the Act came into force, but the principle enacted in the section is based upon the principle of justice and equity that no man can take advantage of his position to the detriment of the interest of another and if he does so, he will hold such advantage 1 in trust for the latter. (His Lordship then discussed the question of identification of the lands in suit with the lands of the sale deeds, and proceeded. The decree of the learned Subordinate Judge will be modified. The plaintiffs will get an unconditional decree for possession in respect of plots No. 58, 61, 68, 80, 225, 415, 554, 871, 903, 913, 59, 803 and 806. There will also be a decree for mesne profits in respect of these plots for the period not time-barred. They will also get a decree in respect of plots Nos. 32, 188, 56, 143, 147, 184, 221, 421, 423, 429, 446, 527, 617 and 648 on condition of their depositing in Court to the credit of the defendants Rs. 1,154-10-3, less any amount which they may have deposited under the decree of the Court below, within two months from the receipt of the record by the lower Court. If they fail to do so, their suit in respect of these plots will stand dismissed. The order of the Court below in respect of the costs will be modified. The plaintiffs will be entitled to only half the costs of that Court. The parties will bear their own costs in this Court.

Sankara Balaji Dhavle, J.

19. I agree.