The Judgment of the Court was as follows:

1. This is an appeal from an Appellate order of the Subordinate Judge of the 5th Court, Dacca, affirming an order of the Munsif of the 5th Court, Munshiganj, allowing the application of Respondent No. 1 for restoration of possession of lands under sec. 26G of the Bengal Tenancy Act. The order has been passed under the section as it stands after amendment in 1940.

2. The brother of the applicant before the Munsif mortgaged the lands to the Appellant on the 8th Falgun, 1331, corresponding to the 20th February, 1925, the terms being (1) that the mortgagee would retain the rents and profits of the land in lieu of interest, (2) that the amount would be paid by Bhadra, 1332, (3) on failure to pay the land would remain in the possession of the mortgagee till repayment, (4) if the amount due to the mortgagee were not fully recovered from the mortgaged property the mortgagee would be competent to realise it by attaching and putting to auction other movable and immovable properties of the mortgagor. The mortgagor sold his interest to his brother for Rs.. 600, the consideration being paid as to Rs. 100 in cash, and the balance was to be paid to the mortgagee.

3. Four points have been raised in the appeal; (1) that the applicant, not being the mortgagor, is not entitled to the rights under sec. 26G, (2) that as the applicant has not paid the full consideration, i.e, has not paid the balance of Rs. 500 to the mortgagee, he is not entitled to recover possession, (3) that the mortgage is an anomalous mortgage and is not hit by the provisions of sec. 26G, (4) that sec. 26G in so far as it is held to affect anomalous mortgages is void under sec. 107(1) of the Government of India Act as being repugnant to sec. 68(1)(a), and sec. 98 of the Transfer of Property Act, the amendment not having received the assent of the Governor-General.

(1) As regards the first point the learned Subordinate Judge relies on the provisions of sec. 59A of the Transfer of Property Act which enacts that references in Chapter IV of that Act to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively. For the Appellant it is pointed out that the provision only covers references made in Chapter IV of the Transfer of Property Act, and it is urged that it will not cover references in sec. 26G of the Bengal Tenancy Act. It is to be noted that sec. 59A was inserted in the Transfer of Property Act by the amending Act of 1929, but that previous to its insertion a similar reference had been taken as intended; indeed the chapter is not very intelligible unless this is assumed, the rights as between persons deriving title from the mortgagors and mortgagees respectively would be left very much in the air without such an assumption. The learned Subordinate Judge remarks that as in the present case the transfer was made before the amendments were made in 1938 to sec. 26G, no mala fides or speculation can have been intended, and it is a fact that the transfer was to the brother of the mortgagor. But if the transfer had been to a speculator, there is no obvious reason why the legislature should have intended to give him the benefits of sec. 26G and the fact that the present case is a good one will not help in the interpretation of the section. But an examination of the section as a whole suggests that an assumption is to be made that those deriving title from the mortgagor and mortgagee respectively are intended to be covered by the terms “mortgagor” and “mortgagee” as laid down in sec. 59A of the Transfer of Property Act. For example, a mortgagor can hardly have been intended to be deprived of compensation under the proviso to sub-sec. (5) where the mortgagee had transferred his interest and his transferee had remained in possession beyond the statutory period. Similarly as regards the special provisions in sub-secs. (8), (9), (10), (11) with regard to mortgages by conditional sale; a mortgagor for example can hardly have been intended to be deprived of the benefit of sub-sec. (9) because the person in possession was not the original mortgagee but some person deriving title from him. On the whole therefore we think that the decision of the learned Subordinate Judge on this point is sound, and this point of the Appellant fails.

(2) The second point raised by the Appellant also appears to have no sub stance; there has been an out and out transfer of interest to the applicant, the matter of the consideration out standing is between him and his vendor.

(3) The third point raised by the Appellant is important and involves a somewhat detailed examination of the terms of sec. 26G. Our conclusion is that sec. 26G does apply to anomalous mortgages, but that in view of the special terms of sub-sec. (5) the remedy by way of application provided therein is not open to the mortgagors in such cases. It seems that there was probably an oversight at the time of amendment in 1940. We are here concerned with an anomalous mortgage entered into in 1925 by an occupancy raiyat, i.e, before the amendment of 1928, in which delivery of possession has been given to the mortgagee. We consider that the fourth term referred to above takes the present out of the category of pure usufructuary mort gage as defined in sec. 58(d) of the Transfer of Property Act.

4. Sec. 26G(Ia) enacts:

“Notwithstanding anything contained in this Act or in any other law for the time being in force or in any contract any mortgage . . . . entered into toy an occupancy-raiyat in respect of his holding . . . in which possession of land is delivered to the mortgagee—

(a) which was so entered into before the commencement of the Bengal Tenancy (Ammedement) Act, 1928, and was subsisting on the 1st day of. August, 1937 . . .

shall be deemed to have taken effect as a complete usufructuary mortgage for the period mentioned in the instrument or for fifteen years whichever is less.”

5. The present mortgage clearly fulfils all the requirements of this provision, and is hence to be “deemed” accordingly.

6. There is no “period mentioned in the instrument” in this case, in our opinion. We refer to the definition of

“complete usufructuary mortgage” given in sec. 3(3) of the Bengal Tenancy Act.

7. It

“means a transfer by a tenant o£ the right of possession in any land for the purpose of securing the payment of money or the return of grain advanced or to be advanced by way of loan upon the condition that the loan, with all the interest thereon, shall be deemed to be extinguished by the profits arising from the land during the period of the mortgage”.

8. The legislature seems to have shown an unnecessary fondness for the use of the word “deemed” in legislating on this subject. The words underlined above in the definition are superfluous; the agreement of the parties to such a mortgage will be that the loan with all the interest will in fact be paid by the profits arising from the land and so the whole mortgage money will be paid off, and the debt extinguished. The verb “deem” is customarily employed when something “A” is to be taken to be “B,” when it obviously is not in fact “B” at all. It is so used in sec. 26G(Ia) when the legislature enacts that mortgages which are manifestly not “complete usufructuary mortgages” are to be taken to be such, where it, so to speak, re-writes the mortgage deed, and, provided that the deed is one of mortgage with delivery of possession, enacts that it shall read as if it contained the terms of a “complete usufructuary mortgage,” with a period as laid down.

9. The phrases “period of the mortgage “in sec. 3(3) and “period mentioned in the instrument” in sec. 26G(Ia) must refer to the period, if any, agreed upon between the parties as that at the end of which the rents and profits of the land shall have paid off the mortgage money. In the present deed there is a term for payment in Bhadra, but this cannot be the period referred to. There is then provision that in default the mortgagee is to retain the property until the principal money is paid, the interest being paid out of the rents; there is no time-limit to this. It is a characteristic of a usufructuary mortgage that there is no time-limit, but in the type defined in the Tenancy Act as a “complete usufructuary mortgage” a period is agreed on as one during which the mortgage money will be paid off out of rents and profits. Under the terms of such an agreement the mortgagor is entitled at the end of this period when the mortgage money has been paid off to get back his property under the provisions of sec. 62 of the Transfer of Property Act on his title by a suit for possession [cf. Mulla's Transfer of Property Act (2nd edn.) Commentary on sec. 62—p. 400 (2nd Edn.)]. If the deed affected by sec. 26G be a deed of that type, then if the “period mentioned in the instrument “(“period of the mortgage”) be less than fifteen years, then the term will stand; if greater than fifteen years, then the agreement between the parties will be “deemed to be” for a period of fifteen years. In the deed under consideration, there being no period mentioned, it is to be taken as fifteen years.

10. We have now to consider the terms of sec. 26G (5) of the Act. From what has been said above it will appear that a good deal of the provision made in this sub-section is superfluous. This can be clearly seen in the case of a complete usufructuary mortgage for a period of fifteen years entered into as such by a registered instrument. Even if sec. 26G did not exist the mortgagor executing such a mortgage bond would, on the mortgage money being paid off, as agreed, at the end of the period recover possession of his land by suit under the provisions of the Transfer of Property Act. Nevertheless sec. 26G (5) enacts:

“Notwithstanding anything contained in this Act or in any other law or in any contract, the consideration (with all interest thereon) for a complete usufructuary mortgage . . . .shall be deemed to have been extinguished on the expiry of the period (a) mentioned in the instrument of mortgage from the date of registration of the instrument …. and the mortgagor shall thereupon become entitled to possession of the mortgaged property ….”

11. This adds nothing whatever to the law as it stood before this was enacted. The parties ex hypothesi having agreed that the consideration and interest are to be “extinguished” at the end of the period, the section solemnly enacts that it is to be deemed to be extinguished, and that the mortgagor will recover possession of his land which he is naturally entitled to do by virtue of his agreement.

12. Similarly where the deed between the parties is to be “deemed to be” a “complete usufructuary mortgage” for fifteen years or the “period mentioned in the instrument,” whichever is less, under sec. 26G(Ia), then, under the provisions of the Transfer of Property Act the mortgagor will be entitled at the end of the period to recover his land by suit on his title.

13. All that sub-sec. (5) of sec. 26G adds to the sub-sec. (Ia) and the existing law is to provide a procedure by way of application instead of by way of suit. There is also provision that the “period” dates in the case of mortgage by a registered document from the date of the registration and from the date of possession in other cases. In the case of some anomalous mortgages some such provision is needed.

14. The point made for the Appellant rests on the fact that sub-sec. (5) of sec. 26G provides:

“Notwithstanding anything contained in this Act or in any other law or in any contract, the consideration (with all interest thereon) …. for another form of usufructuary mortgage deemed under sub-sec. (Ia) to have taken effect as a complete usufructuary mortgage …. shall be deemed to have been extinguished . . …. etc.”

15. If the term “another form of usufructuary mortgage” is strictly interpreted, then the sub-section does not apply at all to anomalous mortgages. It was held by this Court in Sheikh Akbar Ali v. Sheikh Mafizuddin(1), that the usufructuary mortgage referred to in sec. 26G, as it stood before amendment, was the pure usufructuary mortgage as defined in the Transfer of Property Act. Moreover sub-sec. (4) specifically analyses the possible cases, since this was necessary for distinguishing the different types for the purposes of the provisos to the sub-section, the dates of execution being important and affecting different types differently. Cl. (a) of the sub-section deals with the complete usufructuary mortgage, cl. (b) with the usufructuary mortgage other than a complete usufructuary mortgage, and cl. (c) with other mortgages with delivery of possession exclusive of those mentioned in cls. (a) and (b). In the face of this it is impossible to give any loose interpretation to the terms “another form of usufructuary mortgage” used in sub-sec. (5). The sub-section thus does not apply to the class referred to in sec. 26G(4)(c). The result is, however, not in our opinion, that the benefits of sec. 26G are not substantially given to mortgagors in respect of mortgages of this class, but merely, for the reasons given above, that such mortgagors are left to their ordinary remedy by way of suit, as would have been the case had they in fact executed “complete usufructuary mortgages” for a period of fifteen years (or less), and had sec. 26G not been enacted at all.

16. If it could be held that sec. 26G(Ia) gave the right to recover possession to mortgagors of the class mentioned in sub-sec. (4)(c), but that sub-sec. (5) as framed in some way took it away, it might then be necessary to consider which of the clauses would prevail, each being prefaced by the phrase “notwithstanding anything contained in this Act.”

17. This then disposes of the third point raised by the Appellant; he succeeds to the extent that it is held that the remedy of Respondent No. 1 is by way of suit, not by application under sub-sec. (5).

18. (4) The question whether sec. 26G is void for repugnancy to any existing Indian Law has recently been disposed of by us in Monmohan Das v. Parswanath Das Sarkar(2). In the present case an additional argument is adduced by the Appellant, based on sec. 98 of the Transfer of Property Act. As that section merely enacts that in the case of anomalous mortgages the parties will be bound by their contract, then in so far as the contract relates to the (agricultural) land, and the matter of its transfer is in question, which is all we are concerned with here, this is clearly a matter excluded from the Concurrent List III, item 10, and is therefore a matter under item 21 of List II of the Provincial List. The question of repugnancy therefore cannot arise. In so far as the contract relates to the payment of the money, we are not concerned with that question now; it may arise if the mortgagee sues for the principal money. We may merely remark that we see nothing in sec. 98 or in see. 68(1)(a) of the Transfer of Property Act for that matter, which provides that a contract, otherwise illegal, must be enforced. Sec. 37 of the Contract Act also specifically exempts performance of contracts where performance is dispensed with or excused under any law.

19. This appeal is accordingly allowed and the order of the Lower Court is set aside. There will be no order as to costs.

20. Certificate under sec. 205 of the Government of India Act is granted.

P.C