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Gadadhar Mandal and ors. Vs. Chintamoni Das - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1940Cal210a
AppellantGadadhar Mandal and ors.
RespondentChintamoni Das
Excerpt:
- .....application as he was of the opinion that the mortgage in question is not an usufructuary mortgage. the mortgage bond however has been placed before us. from the terms of the bond it is clear that the mortgagees are in possession of the occupancy holding in lieu of the interest due on the money advanced by them on the mortgage. it is true that there is a covenant that if the mortgagees be dispossessed the mortgagees will have the right to bring a suit for recovery of the mortgage money. it is also true that the mortgagor has got a right to redeem a part of the mortgaged property on payment of a proportionate amount of the total mortgage money. but this covenant do not in any way affect the character of the mortgage as an usufructuary mortgage. in view of the definition of a.....
Judgment:
ORDER

1. This Rule is directed against the order of the Munsif, 2nd Court, Contai, in a proceeding under Section 26-G, Bengal Tenancy. Act, rejecting the petitioner's application for being restored to possession of an occupancy holding under the provisions of that Section. The learned Munsif has rejected the petitioners' application as he was of the opinion that the mortgage in question is not an usufructuary mortgage. The mortgage bond however has been placed before us. From the terms of the bond it is clear that the mortgagees are in possession of the occupancy holding in lieu of the interest due on the money advanced by them on the mortgage. It is true that there is a covenant that if the mortgagees be dispossessed the mortgagees will have the right to bring a suit for recovery of the mortgage money. It is also true that the mortgagor has got a right to redeem a part of the mortgaged property on payment of a proportionate amount of the total mortgage money. But this covenant do not in any way affect the character of the mortgage as an usufructuary mortgage. In view of the definition of a complete usufructuary mortgage in Section 3, this mortgage which was executed in 1922 must be deemed to have been extinguished under Section 26-G(5). The result therefore is that this Rule is made absolute. The order complained of is set aside; we direct that the petitioner mortgagor be put in possession of the mortgage properties. There will be no order as to costs.


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