SURPAT SINGH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) 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. On 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 the 27th June, 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 Regulation VIII of 1819. The petitioners deposited Rs. 50,849-1-3 p. 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: it is firstly stated that the West Bengal Estates Acquisition Act, 1953 (hereinafter referred as the "act") does not contain any provision for paying compensation to the mortgagee of an estate or any right in an estate and, therefore, contravenes the provisions of Article 31 (2) of the Constitution, and is consequently invalid. Secondly, it is said that the exceptions provided for in Article 31a do not apply to the case of a mortgagee, because the interest of the mortgagee in an estate or a right in an estate is not by itself to be considered as an estate or a right in an estate, in terms of Article 31a of the Constitution. Lastly, it is said that no notice could be served upon the Receiver, because he is not a person in possession, but the property is in the possession of the court.

(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 in cumbrances. The word "in cumbrance" 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 "in cumbrance" has been defined in section 161 of the Bengal Tenancy Act. It has been held in the case of Jognarain Singh v. Badri Das (1) 16 C. L. J. 156 by Mookerjee, J. that a mortgage or a charge is such an in cumbrance. 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 in cumbrances, 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 :-