SAHARADDIN DEWAN Vs. ALTAFUDDIN AHMED

JUDGEMENT

(1.) This is an appeal from an appellate order of the Subordinate Judge of the 5 Court, Dacca, affirming an order of the Munsif of the 5 Court, Munshiganj, allowing the application of respondent 1 for restoration of possession of lands under Section 26G, Ben. Ten. Act. The order has been passed under the section as it stands after amendment in 1940, The brother of the applicant before the Munsif mortgaged the lands to the appellant on 8 Falgun 1331, corresponding to 20 February 1925, the terms being (1) that the mortgagee would retain the rents and profits of the land in lieu of interest, (2) that the amount would be paid by Bhadra 1332, (3) on failure to pay the land would remain in the possession of the mortgagee till repayment, (4) if the amount due to the mortgagee were not fully recovered from the mortgaged property the mortgagee would be competent to realise it by attaching and putting to auction other moveable and immovable properties of the mortgagor. The mortgagor sold his interest to his brother for its. 600 the consideration being paid as to Rs. 100 in cash, and the balance was to be paid to the mortgagee.

(2.) Four points have been raised in the appeal; (1) that the applicant, not being the mortgagor, is not entitled to the rights under Section 26G, (2) that as the applicant has not paid the full consideration, i.e., has not paid the balance of Rs. 600 to the mortgagee, he is not entitled to recover possession, (3) that the mortgage is an anomalous mortgage and is not hit by the provisions of Sec. 26G, (4) that Section 26G in so far as it is held to affect anomalous mortgages is void under Section 107(1), Government of India Act, as being repugnant to Secs.68(1)(a) and 98, T.P. Act, the amendment not having received the assent of the Governor-General. (1) As regards the first point, the learned Subordinate Judge relies on the provisions of Section 59A, T.P. Act, which enacts that references in Chap. 4 of that Act to mortgagors and mortgagees shall be deemed to, include references to persons deriving title from them respectively. For the appellant, it is pointed out that the provision only covers references made in chap. 4, T.P. Act, and it is urged that it will not cover references in Section 26G, Ben. Ten. Act. It is to be noted that Section 59A was inserted in the Transfer, of Property Act by the Amending Act, 30 of 1929, but that previous to its insertion a similar reference had been taken as intended; indeed the chapter is not very intelligible unless this is assumed, the rights as between persons deriving title from the mortgagors and mortgagees respectively would be left very much in the air without such an assumption. The learned Subordinate Judge remarks that as in the present case the transfer was made before the amendments were made in 1938 to Section 26G, no mala fides or speculation can have been intended, and it is a fact that the transfer was to the brother of the mortgagor. But if the transfer had been to a speculator there is no obvious reason why the Legislature should have intended to give him the benefits of Section 26G and the fact that the present case is a good one will not help in the interpretation of the section. But an examination of the section as a whole suggests that an assumption is to be made that those deriving title from the mortgagor and mortgagee respectively are intended to be covered by the terms mortgagor and mortgagee as laid down in Section 59A, T.P. Act. For example, a mortgagor can hardly have been intended to be deprived of compensation under the proviso to Sub-section (5) where the mortgagee had transferred his interest and his transferee had remained in possession beyond the statutory period. Similarly, as regards the special provisions in Sub-sections (8), (9), (10), (11) with regard to mortgages by conditional sale; a mortgagor, for example, can hardly have been intended to be deprived of the benefit of Sub-section (9) because the person in possession was not the original mortgagee but some person deriving title from him. On the whole, therefore, we think that the decision of the learned Subordinate Judge Ion this point is sound, and this point of the appellant fails. (2) The second point raised by the appellant also appears to have no substance; there has been an out and out transfer of interest to the applicant, the matter of the consideration outstanding is between him and his vendor. (3) The third point raised by the appellant is important and involves a somewhat detailed examination of the terms of Section 26G. Our conclusion is that Section 2SG does apply to anomalous mortgages, but that in view of the special terms of Sub-section (5) the remedy by way of application provided therein is not open to the mortgagors in such cases. It seems that there was probably an oversight at the time of amendment in 1940. We are here concerned with an anomalous mortgage entered into in 1925 by an occupancy raiyat, i.e., before the amendment of 1928, in which delivery of possession has been given to the mortgagee. We consider that the fourth term referred to above takes the present out of the category of pure usufructuary mortgage as defined in Section 58(d), T.P. Act. Section 26G(1a) enacts: Notwithstanding anything contained in this Act or ID any other law for the time being in force or in any contract, any mortgage...entered into by an occupancy raiyat in respect of his holding in which possession of land is delivered to the mortgagee- (a) which was so entered into before the come mencement of the Bengal Tenancy (Amendment) Act, 1928 and was subsisting on 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.

(3.) The present mortgage clearly fulfils all the requirements of this provision, and is hence to be "deemed" accordingly. There is no period mentioned in the instrument in this case, in our opinion. We refer to the definition of "complete usufructuary mortgage" given in Section 3(3) Ben. Ten. Act. It means a transfer by a tenant of the right of possession in any land for the purpose of securing the payment of money or the return of grain advanced or to be advanced by way of loan upon the condition that the loan, with all the interest thereon, shall be deemed to be extinguished by the profits arising from the land during the period of the mortgage.