ASTA BALA DASI Vs. BEJOY KUMAR DAS

JUDGEMENT

(1.) The principal point -- or I would rather say the only point -- which requires consideration in this appeal is whether a suit by the mortgagor under Section 26-G, Sub-section (8), Clause (a), Bengal Tenancy Act is governed by Article 148, Limitation Act. The question is not one of much difficulty but it is not wholly without importance.

(2.) On the 12th Chaitra 1333 B. S., corresponding to 27-3-1927, the respondent No. 1 Bejoy Kumar Das and his uncle Natobar Das, the father and father-in-law respectively of respondents Nos. 2 and 3, mortgaged by an appropriate registered instrument an occupancy raiyati holding to the appellant for securing a loan of Rs. 1000/-. It was a composite mortgage combining in itself a mortgage by conditional sale and a usufructuary mortgage. Its relevant terms were that the mortgagee would possess the mortgaged property in lieu of interest & in default of repayment of the principal money within 11 years from the date of the mortgage bond the transaction would ripen into an absolute sale in favour of the mortgagee. It was thus an anomalous mortgage usually known as mortgage usufructuary by conditional sale or a mortgage by conditional sale with possession (vide in this connection the case of -- 'Mahendra Nath v. Kalipada Haldar', AIR 1940 Gal 486 (A) and there is no dispute that the transaction was in substance a mortgage by conditional sale in which possession of the land had been delivered to the mortgagee as contemplated by Sub-section (8) (a) of Section 26-G, Bengal Tenancy Act.

(3.) The mortgagee remained in possession all along and after the introduction of the amended Section 26-G, Bengal Tenancy Act the original mortgagor No. 1 Bejoy Kumar Das and the sons of the other mortgagor Natobar who had died in the meantime applied under Section 26-G, Sub-section (5), Bengal Tenancy Act for restoration of possession and other reliefs as provided in that sub-section and, having failed in their attempt because of the Full Bench decision of this Court in the case of -- 'Badsha Mia v. Mobarak Ali Shonar', AIR 1946 Cal 348 CB), where it was held that the said sub-section was not applicable to cases of such mortgages, they instituted the present suit on 20-9-1950 for redemption or recovery of possession of the mortgaged property under Section 26-G, subsection (8) (a), Bengal Tenancy Act. The suit had been decreed by the two Courts below in a preliminary form under Sub-section (9) of the said Section 26-G. Hence this second appeal by the defendant mortgagee.