ABHOY CHARAN MALO Vs. HARENDRA CHANDRA MANDAL

JUDGEMENT

(1.) This rule was obtained by the mortgagees petitioners, against an order made by the Munsif, Third Court, Munshiganj, in a proceeding under Section 26-G(5), Ben. Ten. Act. The opposite, parties were mortgagors under an allege usufructuary mortgage bond executed in, the year 1914. They presented an application for restoration of possession of the mortgaged property under Section 26-G(5), Ben. Ten. Act, on the ground that more than 15 years had elapsed from the date of the registration of the instrument and consequently the consideration of the mortgage was extinguished. The trial Court granted the prayer and allowed the application. The mortgagee preferred an appeal before the District Judge of Dacca which was dismissed. It is not disputed before us that the appeal was incompetent and we have been asked to revise the order of the Munsif in exercise of our revisional powers. Mr. Guha who appears in support of the rule has contended before us that the mortgage in this ease could not rank as a usufructuary mortgage in law and as such the mortgagors were not entitled to have She properties restored to them under Section 26-G(5).

(2.) The document has been placed before us in its entirety. It recites that the mortgagors took an advance of Rs. 400 from the mortgagees and as a security for the advance, executed a mortgage bond and gave Sup possession of the scheduled properties to the mortgagees. The mortgagees were to enjoy the usufruct in lieu of interest. The mortgagors undertook to take back the property on payment of the principal sum in the month of Pous 1323 B.S. In case they could not redeem the properties at the stipulated period the mortgagees would go on enjoying the properties till the money was paid. The further stipulation was that if it was subsequently disclosed that the mortgagors had already mortgaged the properties to other persons or if before payment of the mortgage money it was again mortgaged to some other person or the mortgagors surrendered the lands in favour of the landlords, then the mortgagees could institute a suit for the recovery of the mortgage money and in that case they would be entitled to recover all these sums together with costs by sale of the mortgaged properties. On a consideration of the document as a whole, we are of opinion that the document did create a usufructuary mortgage. There is no personal covenant to pay the money and the term or wadah fixed in the deed does not in our opinion import any personal liability.

(3.) As we have held in Civil Revn, Khoaj Jamadar V/s. Abdul Sobhan Khan Reported in the fixing of a wadah or term of this description does not alter the character of the mortgage. The provision, to quote the words of the learned Judges in Luchmeshar Singh V/s. Dookh Mochan Jha (1897) 24 Cal. 677 was merely a proviso for redemption. It laid down the minimum time within which the mortgagor could redeem. That such a term is quite proper in a usufructuary mortgage bond is clear from the provision of Section 62(b), T.P. Act. There is no provision in the deed that on the expiry of the due date the mortgagee would be able to demand the money. On the other hand it is expressly provided that in default of redemption the mortgagees will hold the property and go on enjoying the same till the mortgagor was in a position to pay the money. The other stipulation which gives the mortgagee a right to sue for the mortgage money and to sell the mortgaged property in the case of disclosure of any encumbrance on the property is in the nature of indemnity clause as has been held by a Division Bench of this Court in Panchanan Mandal V/s. Shashi Bhushan Prodhan . This takes effect only on the happening of a certain contingency, when the basis of the arrangement upon which the parties proceeded is disturbed or upset. In our opinion the view taken by the Court below is right and the rule must be discharged. We make no order as to costs. Mohamed Akram, J.