PRAFULLA KUMAR MAITY Vs. UDAY CHANDRA PRADHAN

JUDGEMENT

(1.) THE only point; for determination in this Rule is whether the petitioners are precluded from showing that they are occupancy raiyats. THE learned Subordinate Judge has found that the petitioners represented to the opposite party that they were mokarari mourasi raiyats and relying on that representation the opposite party advanced Rs. 5000 to the petitioners on the mortgage of the tenancy. This finding is based on the evidence of opposite party No. 1. It is consequently a finding of fact and cannot be interfered with in revision. THE contention of Mr. Jana on behalf of the petitioners however is that the law of estoppel cannot be invoked in a proceeding under Section 26.G, Ben. Ten. Act, as that Section clearly states that the mortgagor would get back his property notwithstanding anything contained in any contract or in any other law for the time being in force. His argument is that the Evidence Act which contains the law of estoppel is included within the words "any other law for the time being in force." I am unable to accept this contention. THE Section really proceeds on the footing that the mortgagor is an occupancy raiyat and the Legislature was evidently thinking of the rights in the property, as for example, the law of mortgage. THE Evidence Act is an existing Indian Statute falling in the Concurrent List in Schedule 7 to the Government of India Act. THE Amending Act which introduced Section 26-G was passed by the Provincial Legislature of Bengal and it did not receive the assent of the Governor-General in Council. Consequently, the Provincial Legislature never intended to affect the law of estoppel as contained in the Evidence Act. THEre is a presumption that a Legislature acts intra vires. Consequently, opposite party No. 1 is entitled to invoke the principle of estoppel in order to defeat the petitioners claim for retransfer of the mortgage property. THE rule is accordingly discharged with costs, the hearing fee being assessed at one gold mohur. Narsing Rau, J.

(2.) I agree.