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DERBYSHIRE, B. K. MUKHERJEA
Mahendra Nath Sardar – Appellant
Versus
Kalipada Haldar – Respondent
JUDGMENT
B.K. Mukherjea, J. - This rule is direct-ad against an order o the Subordinate Judge, Third Court, Alipore, dated 26th March 1940, made in a proceeding u/s 26-G(5), Ben. Ten. Act. The petitioners are the mortgagees under a mortgage deed executed by opposite party No. 3 on behalf of herself and her two sons, the opposite parties Nos. 1 and 2, who were then minors in April 1923. The case of the opposite parties was that it was a usufructuary mortgage and they presented the application for restoration of the mortgaged properties u/s 26-G(5), Ben. Ten. Act, on the ground that more than fifteen years having elapsed from the date of the registration of the instrument the consideration of the mortgage was extinguished.
2. The mortgagees resisted the claim substantially on two grounds: It was urged in the first place that the mortgage was one by conditional sale and not a usufructuary mortgage and as such the provisions of Section 26-G(5), Ben. Ten. Act, were not applicable. The second point taken was that the mortgagors having represented to the mortgagees that the properties mortgaged were mokarari holdings held by them at a fixed rent, they were estopped from saying that these we
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