SMT SARAJBASHINI GHOSH Vs. BAIJNATH PANDEY

JUDGEMENT

(1.) It is unfortunate in this case that the learned Judges in the Courts below did not decide all the questions which arose in the case. It is possible that the parties themselves limited the case to the question whether the transaction of 2nd June 1927 was a lease or a usufructuary mortgage. But having regard to the view that we take, a number of other questions must necessarily be decided.

(2.) The plaintiff who is the appellant was a lessee under a lease at some date after 2 June, 1927 and claimed to be an assignee of the rights of the grantor of the deed of 2 June, 1927. I have alredy indicated that the plaintiff contends and the defendants deny that that document was a usufructuary mortgage and that was the question upon which the decision of the learned Judge in the Court below depended as I have already said and repeat. Now if the decision were otherwise, a question immediately arises as to whether the plains tiff was entitled to have an account as he claimed and to redeem the mortgage which he said the transaction was on the footing of that account. He based his contention on Regn. 3 of 1872 (the Santal Parganas Settlement Regulation), Clause 6 which makes provision that Courts having jurisdiction in the Santal Parganas shall observe certain rules as regards usury. The clause is mandatory. It is necessary therefore if the transaction was a usufructuary mortgage and if the consideration therein named was a loan that the Judge should have considered in these circumstances whether the matter came within Clause (6) of that Regulation. That substantially is the plaintiff's case.

(3.) It is true that the transaction of 1927 was for a period of 11 years, and if the contention of the plaintiff, appellant is right and Clause (6) of Regn. 3 of 1872 applies, it will apply in spite of the contract between the parties that the transaction (whatever it may have been) should inure for that period.