B.K. Mukherjea, J.
1. This rule is directed against an order of the Munsif, Third Court, Tamluk, dated 29th July 1939, made in a proceeding under Section 26G(5), Ben. Ten. Act. The father of the opposite party executed a mortgage bond in favour of the petitioner's father some time in the year 1920, by which possession of the mortgaged property was delivered over to the mortgagee. More than 15 years having elapsed from the date of the registration of the deed, the opposite party presented this application under Section 26G(5), Ben. Ten. Act, for restoration of possession of the mortgaged property. The Munsif allowed this prayer and it is against this order that the present rule has been obtained. Two points have been taken by Mr. Janah, who appears in support of the rule. It has been argued in the first place that the mortgage bond having expressly recited that the mortgaged property was held at a fixed rate of rent and was not an occupancy holding the mortgagor was estopped from saying that it was an occupancy jote, and as such the provision of Section 26G(5) did not apply. The second point taken is that the mortgage was not a usufructuary mortgage properly so-called but it was an anomalous mortgage and the mortgagor was not entitled to claim restoration of the mortgaged property. As regards the first point, it seems to me that on the facts found no question of estoppel can possibly arise. It has been found by the Court below, that the mortgagee was fully cognisant of the fact that the lands were held by the mortgagor as an occupancy raiyat. It was so recorded in the 0. Section records, and the khatian numbers were expressly given in the mortgage bond; the bond itself at one place described the land as an occupancy holding, though at the beginning they were described as a mokarary tenancy. As the plaintiff must be held on the findings of the Court below, to be acquainted with the actual facts of the case, there could not be in fact any misrepresentation by the mortgagor, upon which the mortgagee could have been induced to act or alter his position. The first contention of Mr. Janah therefore must fail.
2. The second point raised by him cannot also be supported. From the mortgage bond it appears to be perfectly clear that the mortgagee was given possession of the mortgaged property and the stipulation was that he should remain in possession till the sum advanced was paid and enjoy the usufruct in lieu of interest. It is true that the mortgage bond mentions a period or term, after which the mortgagor undertakes to redeem the property on payment of the principal money, but as we have already held in an earlier case, vide Khoar Jamadar v. Abdul Sobhan Khan Reported in : AIR1940Cal426 the finding of such a term is quite consistent with the mortgage being a usufructuary mortgage and does not by itself import any personal liability. It simply amounts to a proviso for redemption, and fixes the minimum period within which the right of redemption can be exercised, vide Luchmeshar Singh v. Dookh Mochan Jha (1897) 24 Cal. 677 that the Legislature contemplates such a term in a usufructuary mortgage is apparent from the provision of Section 62(b), T.P. Act. In the present case, it is not said that the mortgagee will be entitled to demand the money after the expiry of the due date and the covenant on the other hand is that the mortgagee would go on holding and enjoying the property, until the mortgagor was in a position to redeem the property by paying the money. We have not been able to find out any other provision in the deed, which imposes a personal liability on the mortgagor or gives the mortgagee a right of sale. There is indeed a provision that in case of dispossession the mortgagee would be able to realise the principal and interest at the rate of 24 per cent, per annum. But that as we have already held in several cases is in the nature of an indemnity clause and does not alter the nature of the mortgage. The result is that both the grounds urged by Mr. Janah fail and the rule is discharged. There will be no order as to costs.
Mohamed Akram, J.
3. I agree.