KHOAJ JAMADAR Vs. ABDUL SOBHAN KHAN JALKADAR KHAN

JUDGEMENT

(1.) This rule is directed against an order passed by the Munsif, 3 Court, Munshiganj, in a proceeding under Section 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 12 April 1920, in respect of a certain occupancy holding to secure an advance of Us. 300 only. The opposite party applied to the Munsif under Section 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 19 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 24 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 under Section 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 under Section 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 itself it will be, we think, quite proper on our part to look to the definition given in Section 58(d), T.P. Act. Under this Section the essentials of a usufructuary mortgage are as follows : (1) the mortgagor delivers possession or expressly or by necessary implication binds himself to deliver possession of the mortgaged property; (2) the mortgagee retains possession until payment of the mortgage money; (3) the rents and profits of the mortgaged property or any part of the same are received by the mortgagee in lieu of interest or in payment of the mortgage money or partly in payment of the mortgage money. It will be seen therefore that in a usufructuary mortgage, properly so called, the remedy of the mortgagee is only to remain in possession till the mortgage money is paid. There is no personal covenant on the part of the mortgagor to pay the debt, and the mortgagee is not entitled to a decree either for foreclosure or for sale. It is contended before us by the learned advocate for the petitioner that the transaction in the present case is not a usufructuary mortgage as there is wadah or due date and a covenant to pay the mortgage money. There is also a provision for giving the mortgagee the right to have a decree for sale in respect of the mortgaged property in case of non- payment of the debt. Now the stipulation in the bond that the mortgagor will receive back the property on payment of the money advanced after the reaping season in Agrahayan, 1337 B. Section is over does not, in my opinion, amount to a personal covenant by the mortgagor to pay the money on the expiry of the due date. As was held inLuchmeshwar Singh V/s. Dookh Mohan Jha (1897) 24 Cal 677 that is merely a proviso for redemption. It fixes the minimum time within which the mortgagor can redeem. Section 62, Clause (b), T.P. Act, pre-supposes such a term for payment of the sum advanced in a purely usufructuary mortgage.