SURENDRANATH DEY Vs. RAJINDRA CHANDRA CHANDRA AND ANRMINORS BY THEIR GRANDFATHER AND GUARDIAN JIBAN CHANDRA CHANDRA

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit to enforce a mortgage dated the 1st September 1901. Two questions are controversy at this stage, namely, first, is the second parcel subject to an en foroeable charge; and secondly, what is the amount still due to the plaintiffs?

(2.) The property in question originally formed part of a ghatwali tenure. Before the mort gage was esecuted, an agreement had been made on the 5th August 1901 between the to the effect that on resumption the land would be settled with the ghatwal. On the same day, the ghatwal executed a movrasi mukarari kabuliyat in favour of the zemindar, and, on the 17th December 1901, the zemindar executed a mourasi mukarari patta in favour of the ghatwal. The ghatwal, however, was not released from bis Police duties till the 17th June 1902. Between the execution of the mortgage and the completion of the resumption proceedings, the ghatwal, on the 19th May 1902, sold the second parcel to the predecessors-in-interest of the contending defendants who, in their turn, on the 31st May 1909, conveyed the pro. perty to the respondents. The position taken up by the contesting defendants is that on the date of the execution of the mortgage, the second parcel was still nontransferable ghatwali land, and, consequently, no valid charge was created thereon. This view did not commend itself to the trial Court, and a mortgage decree was made in respect of the disputed parcel as also the other lands included in the security. On appeal, the District Judge took a different view and held that there was no valid mortgage enforceable against this property. In our opinion, this conclusion cannot be supported.

(3.) It is not necessary for our present purpose to determine, whether ghatwali property is inalienable in the sense that if it is transferred by the ghatwal to a stranger, the transferor himself is entitled to question the validity of the alienation for whether ghat wali land is or is not inalienable in the sense, our ultimate decision must be in favour of the plaintiffs.