1. In this case it appears that the plaintiff purported to make a usufructuary mortgage of an occupancy tenancy, which was illegal having regard to the provisions of Section 20 of the Agra Tenancy Act. The present suit was instituted by the plaintiff in effect to redeem the property. The Court of first instance decreed the claim. The lower appellate Court reversed the decree of the Court of first instance and dismissed the plaintiff's suit upon the ground that the mortgage was null and void. It seems to us that this decision is wholly wrong and inequitable. It might be that if the plaintiff came into Court and asked to get back his property without payment of the mortgage money at all on the ground of the illegality of the transaction that the Court would put him upon terms of paying the mortgage money. Even this view is not universally taken, for one learned Judge at least has held that in such a case the owner of the occupancy tenancy could get back the property with out paying the mortgage money.
2. However in the present case the plaintiff very honestly comes in offering to pay the mortgage money. In our opinion he is clearly entitled to get possession on so doing. We allow the appeal, set aside the decree of the lower appellate Court and restore the decree of the Court of first instance with this modification that, we decree the plaintiff's costs in all Courts, and that we decree that the time for payment be extended for six months from this date.
V.B/R.K
3. Decree modified.