NARENDRA NATH CHAKRAVARTY Vs. BANAMALI MANDAL

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff sued for foreclosure of a mortgage which had been executed on 16 April 1926, in favour of a man named Bharat Mandal. The appellants are the lessees under the original mortgagor. The case for the appellants is that the mortgage debt has been extinguished owing to the operation of Section 26G, Bengal Tenancy Act. It was held by the lower appellate Court that Section 26G, Bengal Tenancy Act, could have no application in a case of this particular mortgage which the learned Judge considered to be an anomalous mortgage. In this Court the learned advocate for the appellants has drawn my attention to the provisions of Bengal Act 18 of 1940, which has had the effect of amending Section 26G as it stood when this matter came before the lower appellate Court for consideration. The amended Section 26G (la) reads as follows: (la) Notwithstanding anything contained in this Act or in any other law for the time being in force or in any contract, every mortgage (including a mortgage by conditional sale) entered into by an occupancy raiyat in respect of his holding or of a portion or share thereof in which possession of land is delivered to the mortgagee (a) which was so entered into before the commencement of the Bengal Tenancy (Amendment) Act, 1928, and was subsisting on or after the 1 day of August 1937...shall be deemed to have taken effect as a complete usufructuary mortgage for the period mentioned in the instrument or for fifteen years whichever is less. Having regard to the language of Sub-clause (a) of the amended section this amendment clearly has retrospective effect and must, therefore, be held to be applicable to the mortgage now in suit. Further, it is clear that the amendment affects every mortgage in which possession of land is delivered with the result that all such mortgages whether they fall within the express terms of the definition of "complete usufructuary mortgage" contained in Section 3 (3), Bengal Tenancy Act, or not must be deemed to take effect as complete usufructuary mortgages. It, therefore, follows that the provisions of Section 26G (5) must apply to all such mortgages and the result will be that any such mortgage shall be deemed to have been extinguished on the expiry of the period (a) mentioned in the instrument of the mortgage, or (b) of fifteen years, whichever is loss, from the date of the registration of the instrument, etc.

(2.) It is argued by the learned advocate for the respondent in this case that it would be inequitable in the present case to apply the pro-visions of Section 26G of the Act having regard to the terms of the mortgage deed, which only make provision for the payment of the interest on the loan and for rents payable to the landlords from the usufruct of the mortgaged land. According to the terms of the deed, it was apparently the intention of the parties thereto that the amount due on account of the principal should be paid separately and should have nothing to do with the usufruct of the property. There is of course some force in what the learned advocate says on this point and it is possible that the Legislature may not have considered the hardship which the language of the amended Sub-section 26G (la) may cause to individual creditors in cases such as this. The fact remains however that the language of the amendment is absolutely clear and I have no option but to hold that this mortgage falls within the purview of the section and must be deemed to take effect as a complete usufructuary mortgage with all the resultant consequences arising from such a finding.

(3.) It is further argued by the learned advocate for the respondent that the period of nine years mentioned in the mortgage deed should not be regarded as "the period mentioned in the instrument" for the purpose of Section 26G, Bengal Tenancy Act. It so happens that in this case only one period has actually been mentioned in the mortgage deed, namely, the period from 1333 B.S. to 1341 B.S. With reference to this period the deed recites: I borrow Rs. 1150 from you after delivery of possession of the said lands to you, for a period of nine years, from the year 1333 B.S. to 1341 B.S. There can, therefore, be no doubt that the period of nine years was the period mentioned in the instrument in this particular ease and there is also no doubt that this period has already expired. It follows therefore that the mortgage debt must be deemed to have been satisfied and that the plaintiff is entitled to no relief. This appeal must accordingly be allowed and the plaintiff's suit is dismissed. The appellants are entitled to restoration of possession. I make no Order with regard to costs. No Order is necessary on the application, dated 6 August 1942, under the Bengal Money-lenders Act. Let the counter-affidavit filed in Court to-day be kept on the record.