B.K. Mukherjea, J.
1. This rule is directed against an order of the Munsif at Jalpaiguri dated 10th June 1939 allowing an application of the opposite parties, mortgagors under Section 26G(5), Ben. Ten. Act. There was an appeal taken against the order to the Court of the District Judge at Jalpaiguri, but the Subordinate Judge, who heard the appeal, held, and in our opinion rightly, that the appeal was incompetent. Mr. Chatterjee who appears in support of the rule has raised three points for our consideration. It has been contended in the first place that the mortgage was not an usufructuary mortgage but an anomalous one, and as such did not come within the purview of Section 26G(5), Ben. Ten. Act. The second point taken is that the mortgage bond not being in respect of occupancy holdings merely but having included permanent tenures as well, it could not be split up and restoration of possession allowed so far as it related to occupancy jotes. It is urged in the third place that the mortgagors themselves being in possession of the mortgaged property as Adhihars under the mortgagees, were not competent to apply for restoration of possession.
2. As regards the first ground, we must say that the mortgage bond is not at all clearly worded and it is somewhat difficult to ascertain what exactly the intention of the parties was. It is described as a khai khalasi mortgage deed, and certain tenures and occupancy holdings were mortgaged by the opposite parties predecessors to secure an advance of Rs. 4500 only. The mortgagee was to remain in possession of the properties and enjoy the rents and profits for a period of fifty years from the date of the bond. It is recited in the document that the net profits accruing from the property would be about Rs. 403 odd and deducting from that Rs. 333 on account of establishment charges and interest on the money lent, there would remain a surplus of Rs. 70 which would be appropriated by the mortgagee towards the payment of the mortgage debt. The contemplation of the parties undoubtedly was that under normal conditions it would be sufficient to wipe off the loan together with interest. If the matter stood there, we would have no hesitation in holding that it was a complete usufructuary mortgage as defined in Section 3(3), Ben. Ten. Act. The document however added a clause which reads as follows:
May not God ordain it to be so, but it on account of our laches or for any other reason the productivity of the mortgaged land decreases or our acts partially hamper your collection, for the same we shall be entirely responsible. If on that account at the end of khai-khalasi period your dues of Rs. 4500 have not been realised in that case for the balance, out of the said Rs. 4500 that will be due, we shall be liable and in our absence our heirs will be liable for the same.
3. The question before us is as to whether the stipulation mentioned above alters the nature of the mortgage? Now, the primary intention of the parties is, as I have said already that the mortgagee would repay himself out of the rents and profits of the property and on a calculation of the normal income from these properties, the period of 50 years was fixed and that was considered sufficient to extinguish the loan. The subsequent clause, in my opinion, was a personal covenant on the part of the mortgagor to compensate the mortgagee in case owing to loss of fertility of the land or similar other reasons, the profits fell short of the expected amounts. In the event of that contingency, the mortgagor undertook personally to make good the deficiency from his own pocket. This was in the nature of a contract to indemnify or compensate the mortgagee in the event of his not being able to realize the entire profits and this in my opinion was quite outside the mortgage transaction, the creditor being given no right as a mortgagee with regard to this amount of money and not being allowed to have a decree either for foreclosure or for sale. In my opinion the transaction is a complete usufructuary mortgage in spite of the covenant and hence attracted the provisions of Section 26-G(5), Ben. Ten. Act. The first contention raised by Mr. Chatterjee fails.
4. As regards the second point it is not disputed that in respect of the tenure which is covered by the mortgage the mortgagor was not entitled to recover possession under Section 26-G(5). Mr. Chatterjee argues that if the claim for possession of the occupancy holding is allowed the result will be to split up the mortgage and allow piecemeal redemption which the law forbids. It is true that a mortgage security is indivisible and a mortgagee can refuse to be redeemed with regard to a portion of the mortgaged property on payment of a proportionate share of the mortgage debt. But it must be remembered that Section 26-G(5), Ben. Ten. Act, interferes to a great extent with the rights of the usufructuary mortgagee when the property mortgaged is an occupancy holding. In such cases, on grounds of policy, the Legislature has thought proper to give a statutory right to the mortgagor to recover possession of the mortgaged property which is in possession of the mortgagee, after the lapse of 15 years from the date of registration. Effect must be given we think to the plain words of the Section. Whatever other rights the mortgagee may have with regard to the properties other than the occupancy holdings which are included in the mortgage, the mortgagor must be allowed to recover possession of the occupancy holdings in accordance with the provision of Section 26-G(5), Ben. Ten. Act. If the contention of Mr. Chatterjee is accepted, the result will be that the operation of the Section could be rendered completely nugatory by including one piece of niskar land or mokarari jote in the mortgage bond. It has been held by a Division Bench of this Court in Civil Revision Case No. 1060 of 1939 that when a mortgage bond included both raiyati holdings and niskar lands, the mortgagor, though not entitled to get back the niskar lands was entitled to recover possession of the raiyati lands under Section 26-G(5). We think that this view is correct and we are unable therefore to accept the second contention of Mr. Chatterjee as sound.
5. The last point taken by him has really I lot no substance. The opposite parties are in possession only as Adhihars. They are either labourers or tenants and in either case their possession is in law the possession of the mortgagee. They can certainly claim to be restored to possession of the properties in their own right. The result is that we discharge the rule. There will be no order for costs.
Mohamad Akram, J.
6. I agree.