The Judgment of the Court was as follows:—

Mukherjea, J.:— This Rule is directed against an order passed by the Munsif, 3rd Court, Munshiganj, in a proceeding under sec. 26G, cl. (5), of the Bengal Tenancy Act. The order was affirmed in appeal by the District Judge of Dacca. The predecessor-in-interest of the Opposite Party in the Rule executed a usufructuary mortgage bond in favour of the Petitioner's vendor on April 12th, 1920, in respect of a certain occupancy holding to secure an advance of Rs. 300 only. The Opposite Party applied to the Munsif under sec. 26G, cl. (5) of the Bengal Tenancy Act for restoration of possession of the mortgaged property on the allegation that more than 15 years elapsed from the date of the registration of the instrument and consequently the consideration of the mortgage was extinguished. The application was allowed by the Munsif by his order dated January 19th, 1939. There was an appeal taken by the mortgagee to the Court of the District Judge of Dacca which was dismissed after hearing on April 24th, 1939. It is conceded by the Petitioner before us that the appeal was misconceived and was incompetent in law, and we have been asked to revise the order of the Munsif in exercise of our powers under sec. 115 of the Code of Civil Procedure.

The substantial point that has been raised for our consideration is as to whether the mortgage in dispute was a complete usufructuary mortgage within the meaning of that expression in the Bengal Tenancy Act or was capable of taking effect as such under sec. 26G(1)(a) of the Act. The material portion of the mortgage deed stands as follows:

“This possessory mortgage bond witnesseth—I take from your tahbil the sum of Rs. 300/- (Three hundred) for the purpose of paying off the debt duo to Srijukta Satyendra Kumar Chandra of Kumarhhog, by mortgaging to you one plot of arable land bounded and described as in the schedule below, which is held and possessed by us as a temporary jama of ordinary Karsha jote right….. and in lieu of the interest on the said amount, I give up possession of the schedule land to yon. You will cultivate the land or have it cultivated and you will enjoy the crops that are grown. The due date (wadah) is the month of Agrahayan, 1337 B.S—after you have enjoyed the aman paddy—and I will redeem the land by paying off the principal amount. If I cannot pay up the amount by the due date then the land will remain in your possession till the date of payment and you will enjoy the produce of the land. I will pay the rent of the landlord. If for arrears of rent or any other reason the land lie sold by auction and you are dispossessed of it then I will pay interest on the aforesaid amount at the rate of Rs. 2/- P.C (Rupees Two) per month till the date of payment. If I do not pay off the amount according to your demand, then you will be able to realise your money by auction sale of the property hereby mortgaged by the help of the Court. If all your money is not recovered by sale of the mortgaged property you will be able to realise the amount from my immoveable and moveable properties……..”

The document cannot certainly rank as a complete usufructuary mortgage bond as defined in sec. 3, cl. (3) of the Bengal Tenancy Act. It does not provide for the extinction of the loan together with interest by realisation of profits from the land during the period of mortgage. The only question is whether it could take effect as a complete usufructuary mortgage bond under the provision of sec. 26G(1)(a), of the Bengal Tenancy Act. That clause lays down that

“notwithstanding anything contained in this Act or in any other law or in any contract, every usufructuary mortgage subsisting on or after the first day of August, 1937, which was so entered into before the commencement of the Bengal Tenancy (Amendment) Act, 1928, shall be deemed to have taken effect as a complete usufructuary mortgage for the period mentioned in the instrument or for 15 years, whichever is less.”

In the absence of a statutory definition of a usufructuary mortgage in the Bengal Tenancy Act itself it will be, we think, quite proper on our part to look to the definition given in sec. 58(d) of the Transfer of Property Act. Under this section the essentials of a usufructuary mortgage are as follows: (1) the mortgagor delivers possession or expressly or by necessary implication binds himself to deliver possession of the mortgaged property; (2) the mortgagee retains possession until payment of the mortgage money; (3) the rents and profits of the mortgaged property or any part of the same are received by the mortgagee in lieu of interest or in payment of the mortgage money or partly in payment of the mortgage money. It will be seen therefore that in a usufructuary mortgage, properly so called, the remedy of the mortgagee is only to remain in possession till the mortgage money is paid. There is no personal covenant on the part of the mortgagor to pay the debt, and the mortgagee is not entitled to a decree either for foreclosure or for sale….

It is contended before us by the learned Advocate for the Petitioner that the transaction in the present case is not a usufructuary mortgage as there is wadah or due date and a covenant to pay the mortgage money. There is also a provision for giving the mortgagee the right to have a decree for sale in respect of the mortgaged property in case of non-payment of the debt. Now, the stipulation in the bond that the mortgagor will receive back the property on payment of the money advanced after the reaping season in Agrahayan, 1337 B.S is over, does not, in my opinion, amount to a personal covenant by the mortgagor to pay the money on the expiry of the due date. As was held in Luchmeshar Singh v. Dookh Mochan Jha (1), that is merely a proviso for redemption. It fixes the minimum time within which the mortgagor can redeem. Sec. 62, cl. (6) of the Transfer of Property Act pre-sup-poses such a term for payment of the sum advanced in a purely usufructuary mortgage. In Manilal Ranchod v. Motibhai (2) a deed of mortgage with possession provided that the mortgagee was to enjoy the property in lieu of interest for ten years and was to be redeemed on the expiry of the term by the payment of the mortgage money. It was held that the document created a purely usufructuary mortgage and there was no debt payable by the mortgagor to the mortgagee, which could be attached in execution of a decree against the latter. It seems to me that this view is sound and the mere fixing of a time-limit is not enough to show that the mortgage is an anomalous mortgage. After fixing a wadah or a term for redemption the document provides that in case the amount is not paid by the due date the mortgagee will remain in possession of the property till the money is paid. This, in my opinion, negatives the idea of a personal covenant and shows clearly that in case of failure of the mortgagor to redeem the mortgaged property at the stipulated time the mortgagee's only remedy would be to hold the property and go on possessing it till the mortgagor was in a position to pay back the debt.

The next covenant is that if by reason of rent sale or otherwise the mortgagee is dispossessed from the mortgaged premises, the mortgagor will be bound to pay interest at the rate of 2 per cent per month on the sum advanced. This may be held, in conformity with the view expressed in the case Panchanon Mandal v. Sashi Bhusan Prodhan (3) to be in the nature of an indemnity clause which is to come into operation only if the arrangement contemplated by the parties fails for any reason, and it is not necessarily inconsistent with the document being construed as a usufructuary mortgage bond. The clause that follows is particularly important, and in my opinion, the decision in the present case hinges really on the interpretation which we ought to put upon this clause. This clause says that if the mortgagor does not pay off the mortgage money in accordance with the demand of the mortgagee the latter will be able to realise the money by auction sale of the property mortgaged with the help of the Court. This clearly imports a right in the mortgagee to demand the mortgage money and a right of sale in default of payment. The contention of the Opposite Party is that this is to be taken along with the preceding clause, and the money could be demanded and a decree obtained only if there is dispossession of the property by rent sale or otherwise. If this contention is sound, the stipulation would be only a part of the indemnity clause and would not necessarily alter the character of the mortgage.

There are, however, two objections to our accepting this contention of the Opposite Party as correct. In the first place, the previous clause simply provides that in case of dispossession the mortgagee will be able to claim interest at 2 per cent per month on the sum advanced. It does not say anything about the mortgage money being payable or demandable at once. The parties thought possibly that sec. 68(d) of the Transfer of Property Act, which gave the mortgagee a statutory right to sue the mortgagor for the money in such cases, was quite sufficient to safeguard his interest.

In the second place, if this right of sale was given only when there was dispossession from the property by reason of rent sale, it is difficult to say why the mortgagee should insist upon a decree for sale in respect of the mortgaged property itself, which exhypothesi was lost to the mortgagor. Here again the stipulation does not read like an indemnity clause and it is certainly not on the lines indicated in sec. 68 of the Transfer of Property Act. It may be said that this clause is inconsistent with the one occurring in the previous part of the document which provides that in default of exercising his rights of redemption within the stipulated period the mortgagee would go on holding the property till the mortgagor was in a position to pay the money. It seems to me that the document is and can fairly be construed to be a mixed or anomalous mortgage. It gave the mortgagee not only the rights of the usufructuary mortgagee but those of a simple mortgagee as well. The first part of the document sets out all the incidents of a usufructuary mortgage, but the latter part purports to introduce certain elements of a simple mortgage and allows the mortgagee to demand the money after the due date and to have a decree for sale in respect of the mortgaged property. In my opinion the subsequent portion creates certain additional and independent rights which would entitle the mortgagee, if he so chooses, to institute a suit for sale of the mortgaged property and this is not dependent on the contingency of the mortgagee being dispossessed from the property. The document is indeed clumsily drawn up and is rather of a dubious character. But we must remember that under sec. 26G of the Bengal Tenancy Act the legislature has interfered to a great extent with the rights of a usufructuary mortgagee under the existing law. The section in our opinion should be construed strictly and the privilege should not be extended to a case where the mortgage does not come within the plain language of the section.

Accordingly, the Rule is made absolute, the order of the Munsif is set aside and the application of the mortgagor for restoration of the mortgaged property dismissed.

We make no order as to costs either in this Court or in the Court below.

Akram, J.:— I agree.

C.C