1. One Partim Mandalani was the owner of an occupancy jote. On 10-6-1925, that is to say, before the amendment of the Bengal Tenancy Act in the year 1928, she borrowed money and executed a mortgage in favour of the respondent Ramnath Das. It is an anomalous mortgage, that is to say, a simple mortgage and an usufructuary mortgage combined. The mortgage bond recites that the property was in the possession of bargadars and the mortgagee was to receive the barga produce in lieu of interest. On 29-10-1941, she made an application under Section 26G, Ben. Ten. Act, for recovery of possession from the mortgagee on the ground that the mortgage was to be deemed to be a complete usufructuary mortgage and as 15 years had elapsed from the date of the registration of the mortgage instrument she was entitled to get back possession. The case of the mortgagee was that the mortgage was not to be deemed a complete usufructuary mortgage inasmuch as the mortgagor did not deliver possession of the property to him. The properties were in the possession of trespassers at the time and he obtained possession through Court after recovering a decree for possession against those trespassers. The Court of first instance as also the lower appellate Court did not deal with the specific case of the mortgagee but proceeded upon the footing that the properties were in the possession of bargadars of the mortgagor at the time of the mortgage and that the mortgagee had obtained possession through the bargadars. In that view the application for possession was allowed. A second appeal was preferred to this Court by the mortgagee. It was heard on 8-7-1943, by Henderson J., and on the day following he delivered his judgment, He noticed the case of the mortgagee and stated that the evidence was not clear enough to justify a decision by him. He accordingly remanded the case to the lower appellate Court giving opportunity to the parties to lead evidence on the point. In the remand order he indicated the point on which he asked the lower appellate Court to arrive at a finding and the point so indicated was as to whether the mortgagee's case, as pleaded by him, was true or not. The learned Subordinate Judge received additional evidence from the parties and recorded his findings in a judgment dated 6-9-1943. He came to the conclusion that at the date of the mortgage the properties were in the possession of trespassers, that the mortgagee had to institute a suit for recovery of possession against these trespassers, that he recovered a decree in that suit and in execution of the decree made in that suit obtained possession through Court on 8-8-1932. These findings of the' learned Subordinate Judge were not challenged before Henderson J. when the case was argued before him after remand. He held that in view of those findings the. application for possession should be dismissed and he did dismiss the application. At the same time he granted leave to appeal under the Letters Patent. In our opinion the final judgment which Henderson J. delivered on 17-1-1944, has to be confirmed.
2. We have already stated that by its terms the mortgage instrument is not a complete usufructuary mortgage, because according to the contract between the parties only the interest is to be liquidated by the usufruct. It can only be regarded as a complete usufructuary mortgage if the matter comes within Clause 1(a) of Section 26G as amended in 1940. The material portion of that sub-section is as follows:
Notwithstanding anything contained in this Act or in any other law for the time being in force or in any contract, every mortgage (including a mortgage by conditional sale) entered into by an occupancy raiyat in respect of his holding or of a portion or share thereof in which possession of land is delivered to the mortgagee-
(a) which was so entered into before the commencement of the Bengal Tenancy (Amendment) Act, 1928, and was subsisting on or after the first day of August, 1937...shall be deemed to have taken period mentioned in the instrument or for 15 years, whichever is less.
We have already stated that the mortgage is an anomalous mortgage. In order that it may be deemed to be a complete usufructuary mortgage three conditions must be satisfied: (1) that it was a mortgage executed before the commencement of the Bengal Tenancy (Amendment) Act of 1928; (2) that it was subsisting on or after 1-8-1937; and (3) that possession of the land was delivered to the mortgagee. The first two conditions are satisfied in this case, because the mortgage in suit was executed in 1925 and by its terms it was subsisting on or after 1-8-1937 and had not either been redeemed or foreclosed before 1-8-1937. The question is whether the third condition has been satisfied. The phrase 'possession of land is delivered to the mortgagee' must mean delivery to the mortgagee by the mortgagor, that is to say, the third condition would be satisfied when the mortgagee gets possession through the act of the mortgagor. Possession need not be actual khas possession, for there may be cases where the mortgagor was not in khas possession at the time of the mortgage nor entitled to khas possession, the property being in the possession of a sub-tenant of his. In such eases, the mortgagor would have constructive possession and delivery of that possession would be sufficient. It can be effected by asking the sub-tenant to attorn to the mortgagee. But one thing is clear as we have already stated that the possession of the land is to be delivered to the mortgagee by the mortgagor. In the case before us, it was not through the act of the mortgagor that the mortgagee obtained possession. The mortgagor was not in possession in any sense of the term, because the property at the time of the mortgage was in the possession of trespassers and the mortgagee obtained possession through process of Court. We are accordingly of opinion that the mortgage in question is not to be deemed to be a complete usufructuary mortgage, inasmuch as possession was not delivered by the mortgagor to the mortgagee either at the date of the mortgage or at any time thereafter. In this view of the matter, we affirm the decision of Henderson J.
3. The result is that this appeal is dismissed with costs.