B.K. Mukherjea, J.
1. This rule is direct-ad against an order o the Subordinate Judge, Third Court, Alipore, dated 26th March 1940, made in a proceeding under Section 26-G(5), Ben. Ten. Act. The petitioners are the mortgagees under a mortgage deed executed by opposite party No. 3 on behalf of herself and her two sons, the opposite parties Nos. 1 and 2, who were then minors in April 1923. The case of the opposite parties was that it was a usufructuary mortgage and they presented the application for restoration of the mortgaged properties under Section 26-G(5), Ben. Ten. Act, on the ground that more than fifteen years having elapsed from the date of the registration of the instrument the consideration of the mortgage was extinguished.
2. The mortgagees resisted the claim substantially on two grounds: It was urged in the first place that the mortgage was one by conditional sale and not a usufructuary mortgage and as such the provisions of Section 26-G(5), Ben. Ten. Act, were not applicable. The second point taken was that the mortgagors having represented to the mortgagees that the properties mortgaged were mokarari holdings held by them at a fixed rent, they were estopped from saying that these were occupancy holdings which would attract the operation of Section 26-G, Ben. Ten. Act. Both the defences were negatived by the learned Subordinate Judge who allowed, the application of the opposite parties for restoration of possession of the mortgaged properties. It is against this order that the present rule has been obtained. The learned advocate who appears for the petitioners has challenged the propriety of the decision of the trial Court on both these points.
3. As regards the first point it is conceded on both sides that the mortgage in dispute could not rank as a complete usufructuary mortgage as defined in Section 3(3), Ben. Ten. Act. The only question is whether it is a usufructuary mortgage at all and the document being executed prior to the commencement of the Bengal Tenancy Amendment Act of 1928, could take effect as a complete usufructuary mortgage under the provisions of Sub-section (1)(a) of Section 26-G. In the document itself the parties described it as a mortgage by conditional sale and the expression 'kot kobala' is used throughout the instrument. The mortgagors purported to execute the mortgage by conditional sale in respect; of their share of the mortgaged properties to secure an advance of Rs. 1400 only. The possession of these properties was delivered over to the mortgagees and the stipulation was that they would enjoy the usufruct of the land and credit the same towards the interest due on the mortgage bond. The document mentions a due date which was the end of Chaitra 1338 B.S. and the mortgagors promised to pay the entire mortgage debt within that time upon which the mortgaged properties would be released to them. Then there appears a clause which runs as follows:
If we make default in paying you the principal sum on or before the due date aforesaid, viz. within the month of Chaitra 1338 B.S. on expiry of the said due date you will be entitled to foreclose the mortgage and this conditional sale will thereupon ripen into an absolute sale and in that event you,, your sons, grandsons and other heirs, your assigns will have title to the properties and will possess the same in great felicity and in any way you like.
4. Taking this document as a whole I am unable to say that this is a usufructuary mortgage as contemplated by Section 58(d), T.P. Act. It is true that the mortgagees were given possession of the mortgaged properties and they were entitled to appropriate the rents and profits towards the interest due. But the essential element of a usufructuary mortgage was wanting, namely that the mortgagee would retain possession of the properties till the mortgage money was paid. The mere mentioning of a due date for payment is indeed not material and could be considered as a mere proviso for redemption, if the provision was that in default of redemption the mortgagees would continue to hold the property and go on enjoying the same till the mortgage money was paid. In the document in dispute not only is there no such term, but on the other hand the express provision is that in default of payment of the mortgage money within the due date, the mortgagee will be entitled to foreclose; the kot kobala would then ripen into a saf kobala or an out and out sale. In my opinion the transaction was substantially what it purported to be, namely a mortgage by conditional sale though certain rights of a usufructuary mortgage were also given to the mortgagees. I am not impressed by the argument of Mr. Ghose that the document could not be construed as a mortgage by conditional sale, because there are no express words of transfer in the document showing that the mortgagor ostensibly sold the property to the mortgagees. The expressions kot kobala and saf kobala which are used in the document are in my opinion quite sufficient for this purpose. It is in mortgage by conditional sale of the type mentioned in para. 1 of Section 58(c), T.P. Act, where in default of payment of the mortgage money within a certain date the sale becomes absolute.
5. So far as the second point is concerned, we are not inclined to disturb the finding of the Subordinate Judge on this point and hold that there was any estoppel to preclude the mortgagor from showing that the holdings were really occupancy holdings. The Rule however must succeed on the first ground. The result is that the Rule is made absolute, the order of the Subordinate Judge is set aside and the application for restoration of the mortgaged properties made by opposite parties Nos. 1 to 3 is dismissed. We make no order as to costs in this Rule.
6. I agree.