MAHENDRA NATH SARDAR Vs. KALI PADA HALDAR

JUDGEMENT

(1.) This appeal, which is by the plaintiffs in a mortgage suit, raises two questions of law, both of which are of some interest and importance. The course by which the litigation has come to involve these points has been somewhat devious.

(2.) The material facts are as follows : On 21 chaitra 1329, B.S., corresponding to 7-3-1923, one Baruni Dasi, acting for herself and her two minor sons, borrowed a sum of Rs. 1400 from the plaintiffs on executing in their favour a possessory mortgage of certain lands. It was stipulated in the deed that the mortgagees would hold and enjoy the land in lieu of interest, but if the mortgagors failed to repay the loan by the end of the Bengali year 1339, the mortgage would be treated as an absolute transfer. No payment was made within the time fixed and the mortgagees continued to possess the lands. On 21-12-1938, the mortgagors made an application under Section 26G(5), Ben. Ten. Act, before the 3 Subordinate Judge, Alipore, for restoration of the lands, on the ground that the mortgage, being a usufructuary mortgage of lands held in an occupancy right, had been extinguished by the lapse of fifteen years. The mortgagees replied to this application by filing a suit upon the mortgage in the same Court on 15-2-1989. Their case, both in the plaint of the mortgage suit and the objection to the application under Section 26G(5), was that the mortgage was a mortgage by conditional sale. In the proceeding under Section 26G(5) they contended that Section 26G (as it stood then) could not apply to the mortgage which was not a usufructuary mortgage and, in the suit, they prayed for the usual decree for foreclosure.

(3.) It is not necessary to refer to the further contention of the mortgagees that the mortgagors were not occupancy raiyats, but mourashi mokarari tenants. The contention was negatived by the trial Court and seems thereafter to have been abandoned.