SURPAT SINGH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The facts in this case are shortly as follows: Certain properties situate in the district of Nadia were the stridhan properties of one Saratmoni Debi. She had a patni or leasehold interest in such properties. One Deb Nandan Mukherjee, the grandson of Saratmoni Debi, got the properties under the will of Saratmoni Debi. Sometime in September, 1916, these properties were mortgaged to one Saradindu Mukherjee for Rs. 25,000. On June 27, 1928, the Petitioners advanced a sum of Rs. 60,000 to Deb Nandan Mukherjee on the security of these properties. In June, 1939, Saradindu instituted a suit to enforce his mortgage. Decrees have been passed therein but the amount has not been satisfied. In May, 1950, the mortgaged properties were sold in an astam sale under reg. VIII of 1819. The Petitioners deposited Rs. 50,849-l-3p. and the astam sale was set aside. The Petitioners instituted a suit on the mortgage and the amount advanced by them for setting aside the astam sale, sometime in 1951. A preliminary decree has been passed for a sum of over one lakh of rupees. Petitioner No. 1 has been appointed a receiver. The West Bengal Estates Acquisition Act. 1953. came into operation in 1954 and the necessary notification has been published whereby all estates and rights in all estates in the district of Nadia have vested in the West Bengal Government. Notice has been given to the receiver to submit accounts and returns under Rule 6 of the Estates Acquisition Rules. This Rule has been taken out challenging the notice and it is stated that the provisions of the Estates Acquisition Act mentioned above are invalid and that the Petitioners are not liable to make over possession.

(2.) The grounds on which this application is founded are as follows:

(3.) With regard to the first point, it is said, that the Act does not contain any provision for compensation to be paid to the mortgagee. On the other hand, Section 4 of the Act lays down that the State Government may from time to time by notification declare that with effect from the date mentioned in the notification all estates and the rights of every intermediary in each such estate, situated in any district or part of a district specified in the notification, shall vest in the State free from all incumbrances. The word "incumbrance" has not been defined in the Act. But under Section 2(p), expressions as used in the Act and not otherwise defined have the same meaning as specified in the Bengal Tenancy Act, 1885. The word "incumbrance" has been defined in Section 161 of the Bengal Tenancy Act. It has been held in the case of Jognarain Singh v. Badri Das,1911 16 CalLJ 156by Mookerjee, J., that mortgage or a charge is such an incumbrance. The result is that under Section 4 the estate of an intermediary and all rights in the estate vest in the State Government free from all incumbrances, that is to say, in a case like the present one, free from the mortgage. What then happens to the mortgagees? Under Section 73(2) of the Transfer of Property Act the mortgages shift to the compensation money. That provision runs as follows: