DEBENDRA NATH MAJHI Vs. SARAT CHANDRA NAYAK

JUDGEMENT

(1.) THIS rule is directed against an order of the learned Munsif of Bankura, dated 1 April 1939, under which he directed that certain property should be returned to the mortgagors under the provisions of Section 26-G, Ben. Ten. Act. The petitioners in this case are the mortgagees and they contend that the order made by the learned Munsif was wrong owing to the fact that the property with which the order is concerned was not covered by Section 26-G, Ben. Ten. Act. In the mortgage bond the mortgagors right was described as nishkar and it was on this basis that the mortgage transaction took place. The learned advocate for the petitioners contends that a nishkar holding should be regarded as being governed by Section 18, Ben. Ten. Act, and I consider that there is great force in this contention. In the case with which we are now dealing, it was apparently admitted by the mortgagors that their holding was a nishkar holding and rent-free in perpetuity. In a case of this sort there is to my mind no essential difference between a holding at a rate of rent fixed in perpetuity and an ordinary nishkar holding, because in the latter case the rent which has been fixed in perpetuity is nil. It is provided by Sub-section (2) of Section 18, Ben. Ten. Act, that certain provisions of the Act including Section 26-G shall not apply to ryots holding at fixed rates, even although such ryots have a right of occupancy in the lands of their holdings. The mortgagors appear to have had occupancy rights in the holdings which are the subject-matter of this case and they must also be taken to be governed by Section 18, Ben. Ten. Act. THIS being the case, I must hold that the provisions of Section 26-G, Ben. Ten. Act, do not apply and it follows that the order made by the learned Munsif, dated 1 April 1939, must be set aside. THIS rule is, accordingly made absolute with costs. The hearing fee is assessed at one gold mohur.