UPENDRA NARAYAN CHATTERJEE Vs. SUDHIR CHANDRA JANA

JUDGEMENT

(1.) On 30-6-1915 Madan Mohan Jana and his wife Barada Kumari borrowed Rs. 20,000 from Adhar Chandra Chatterjee on a mortgage at compound interest of 9 per cent per annum with yearly rests. The property secured by the mortgage was Touzi No. 2901 of the 24-Perganas Collectorate. A suit instituted in 1930 by the two sons and legal representatives of Adhar Chandra on the said mortgage resulted on 9-7-1930 in a consent decree for Rs. 70,000 made payable in twenty-five annual instalments (Ex. A). On 15-7-1915 Madan Mohan alone borrowed from the same person Rs. 40,000 on a mortgage at 9 per cent, compound interest with yearly rests. The security was Touzi No. 2902 of the 24-Parganas Collectorate. A consent decree (Ex. A. 2) was passed on this mortgage on 11-7-1930, for the sum of Rs. 1,40,000 and the said amount was made payable in twenty-five yearly instalments. On 30-8-1915 Madan Mohan and his wife Barada Kumari again borrowed from the same person a further sum of Rs. 20,000 on the same interest as before. This sum was secured by a mortgage of Touzis No. 2901, 2954 and 3026. A consent decree for Rs. 65,000 (Ex. A-3) payable in twenty-five yearly instalments was passed on this mortgage on 8-7-1980. On 30-8-1915 Madan Mohan and his wife Barada Kumari again borrowed Rs. 8000 from the same person on the same terms of interest as before on the mortgage of Touzis No. 2901, 2902, 2954 and 3026. On 10-7-1930 a consent decree (Ex. A-1) for Rs. 25,000 was passed on this mortgage. The amount was also made payable in twenty-five annual instalments.

(2.) Each of the consent decrees provided that in default of payment of two instalments in succession the balance of the decretal amount then due would become payable and the decree-holders being entitled to all reliefs prayed for in their plaints will be competent to realise the same by execution. One of the prayers made in the suit to enforce the fourth mortgage set out above was as follows: On a sale of the mortgaged properties in pursuance of the prior mortgages aforesaid, and after satisfaction of the same if there remains any surplus, a charge on account of this mortgage might be declared on such surplus sale proceeds, and proper orders passed for payment of such amount to the plaintiffs.

(3.) We have not given the detailed description of the mortgaged properties and have mentioned those Touzi numbers in that manner for brevity's sake. The Touzis mortgaged were temporarily settled Sunderban Lots and the status of the owners thereof, namely, Madan Mohan and his wife, Barada Kumari, was that of tenure-holders, as defined in the Bengal Tenancy Act. The leases of Touzis Nos. 2901, 2902 and 2954 which were held by Madan Mohan or his wife Barada Kumari, as the case may be, expired in 1940. For instance Touzi No. 2901 had been leased to Barada Kumari for thirty three years from 1-4-1907 to 31-3-1940 (Ex. H).In each of the leases held by them was the following clause: That upon or at any time after the expiration of the term (of the lease) hereby granted...this Lot shall be open to re-settlement for a period of thirty years on such terms as the Government think fit, provided that the assessment shall not be fixed higher than the rates which would be paid by the cultivating raiyats in the neighbourhood for lands growing ordinary crops of the country, less 30 per cent, to be allowed to the lessee to cover the risks and costs of collection and to represent his profits, and the above assessment shall be calculated on the entire area less one fourth which is exempted from assessment under the first condition of this lease. This is Clause 8 of Ex. H.