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1940 Supreme(Cal) 45
CALCUTTA HIGH COURT
Mohamed Akram, J., Mohamad Akram, J., B.K. Mukherjea, J.
Khoaj Jamadar - Appellant
Versus
Abdul Sobhan Khan Jalkadar Khan - Respondent
Decided On : 15-04-1940
The judgment established the distinction between complete usufructuary mortgages and mixed or anomalous mortgages under the Bengal Tenancy Act, emphasizing the strict interpretation of statutory provisions.
Headnote:
Bengal Tenancy Act - Usufructuary Mortgage - Section 26(G)(1)(a) - Section 3, Clause (3), Bengal Tenancy Act - Section 58(d), T.P. Act - Section 62, Clause (b), T.P. Act - Section 68(d), T.P. Act - Mixed or Anomalous Mortgage
Fact of the Case:
The case involved a dispute over a mortgage bond executed under the Bengal Tenancy Act. The mortgagor applied for restoration of possession of the mortgaged property, claiming that the consideration of the mortgage was extinguished after 15 years from the date of registration of the instrument.
Finding of the Court:
The court found that the mortgage bond did not qualify as a complete usufructuary mortgage bond as defined in the Bengal Tenancy Act. It was determined to be a mixed or anomalous mortgage, as it contained elements of both usufructuary and simple mortgages.
Issues: The main issue was whether the mortgage in dispute qualified as a complete usufructuary mortgage bond under the Bengal Tenancy Act.
Ratio Decidendi: The court analyzed the essential elements of a usufructuary mortgage as defined in the Bengal Tenancy Act and the Transfer of Property Act. It interpreted the provisions of the mortgage bond and concluded that it exhibited characteristics of both usufructuary and simple mortgages, leading to the classification as a mixed or anomalous mortgage.
Final Decision: The court set aside the order of the Munsif and dismissed the application for restoration of the mortgaged property, ruling in favor of the petitioner.
JUDGMENT
B.K. Mukherjea, J. - This rule is directed against an order passed by the Munsif, 3rd Court, Munshiganj, in a proceeding u/s 26(G), Clause (5), Bengal Tenancy Act. The order was affirmed in appeal by the District Judge of Dacca. The predecessor-in-interest of the opposite party in the rule executed a usufructuary mortgage bond in favour of the petitioner's vendor on 12th April 1920, in respect of a certain occupancy holding to secure an advance of Us. 300 only. The opposite party applied to the Munsif u/s 26(G), Clause 5, Bengal Tenancy Act, for restoration of possession of the mortgaged property on the allegation that more than 15 years elapsed from the date of the registration of the instrument and consequently the consideration of the mortgage was extinguished. The application was allowed by the Munsif by his order dated 19th January 1939. There was an appeal taken by the mortgagee to the Court of the District Judge of Dacca which was dismissed after hearing on 24th August 1939. It is conceded by the petitioner before us that the appeal was misconceived and was incompetent in law, and we have been asked to revise the order of the Munsif in exercise of our powers u/s 115, Civil P.C. The substantial point that has been raised for our consideration is as to whether the mortgage in dispute was a complete usufructuary mortgage within the meaning of that expression in the Bengal Tenancy Act or was capable of taking effect as such u/s 26(G)(1)(a) of the Act. The material portion of the mortgage deed stands as follows:
This possessory mortgage bond witnesseth : I take from your tahbil the sum of Rs. 300 (three hundred) for the purpose of paying off the debt due to Srijukta Satyendra Kumar Chandra of Kumarbhog, by mortgaging to you one plot of arable land bounded and desoribed as in the schedule below, which is held and possessed by us as a temporary jama of ordinary karsha jote righ...tand in lieu of the interest on the said amount, I give up possession of the schedule land to you. You will cultivate the land or have it cultivated and you will enjoy the crops that are grown. The due date (wadah) is the month of Agrahayan, 1337 B.S. after you have enjoyed the aman paddy, and I will redeem the land by paying off the principal amount. If I cannot pay up the amount by the due date then the land will remain in your possession till the date of payment and you will enjoy the produce of the land. I will pay the rent of the landlord. If for arrears of rent or any other reason the land is sold by auction and you are dispossessed of it then I will pay interest on the aforesaid amount at the rate of Rs. 2 per cent, (two rupees) per month till the date of payment. If I do not pay off the amount according to your demand, then you will be able to realize your money by auction sale of the property hereby mortgaged by the help of the Court. If all your money is not recovered by sale of the mortgaged property you will be able to realize the amount from my immovable and moveable properties....
2. The document cannot certainly rank as a complete usufructuary mortgage bond as defined in Section 3, Clause (3), Bengal Tenancy Act. It does not provide for the extinction of the loan together with interest by realization of profits from the land during the period of mortgage. The only question is whether it could take effect as a complete usufructuary mortgage bond under the provision of Section 26(G)(1)(a), Ben. Ten. Act. That clause lays down that:
Notwithstanding anything contained in this Act or in any other law or in any contract, every usufructuary mortgage subsisting on or after the first day of August 1937, which was so entered into before the commencement of the Bengal Tenancy (Amendment) Act 1928, shall be deemed to have taken effect as a complete usufructuary mortgage for the period mentioned in the instrument or for 15 years, whichever is less.
3. In the absence of a statutory definition of a usufructuary mortgage in the Bengal Tenancy Act i
