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Sm. Bhadu Dasi W/O Golok Behari Dutt Vs. Gokul Chandra Daw and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1948Cal240
AppellantSm. Bhadu Dasi W/O Golok Behari Dutt
RespondentGokul Chandra Daw and ors.
Cases ReferredPrafulla Chandra v. Soaru Mohammad
Excerpt:
- .....daw is entitled to maintain this application. it is admitted before us that the property was the stridhan property of his wife ful kumari. it is also admitted before us that ful kumari did not leave any person who would come within the first group of heirs of stridhan property, viz., son, daughter's son their sons or the son or grandson of a rival wife. amongst the second class of stridhan heirs are the brother, father, mother, husband; but the preference amongst them is determined by two facts: (1) the form of marriage and (2) the nature of the stridhan. having regard to the fact that the other five of the six forms of marriage with daiva have fallen into disuse in modern times it may be presumed that the marriage of ful kumari with her husband gokul chandra daw was in the brahma.....
Judgment:

R.C. Mitter, J.

1. One Radhanath Ghose was the owner of two items of property one a niskar and the other an occupancy holding. On 30th of Baisakh, 1334, (13-5-1927) he borrowed a sum of Rs. 350 from two persons Rohini Gope and Gostha Gope, the predecessor-in-interest of the appellant before us, Bhadu Dasi, and hypothecated by way of usufructuary mortgage the said two items of property. By the terms of the mortgage instrument, the mortgagees in possession were to take the usufruct of the mortgaged properties in satisfaction of the interest only and the mortgagor was given the right of redeeming the property by payment of the principal lent not earlier than Chaitra, 1349. After the mortgage Ful Kumari Dasi purchased the occupancy holding only from the mortgagor. She died some time before June, 1942, leaving behind her husband Gokul Chandra Daw and her mother. In June 1942 Gokul Chandra Daw filed an application under Section 26G (5), Bengal Tenancy Act for getting back the possession of the occupancy holding on the ground that the period of 15 years from the date of the registration of the mortgage instrument had expired. This application was allowed by the learned Munsif and by the learned Subordinate Judge on appeal. Henderson J, sitting singly was pressed by the decision of a Division Bench of this Court in Prafulla Chandra v. Soaru Mohammad : AIR1940Cal499 . As he was sitting singly, he had to and did follow this decision but indicated that his view was otherwise. He, accordingly, dismissed the appeal but gave leave to appeal under Clause 15, Letters Patent.

2. The main question raised in these proceedings is whether Section 26G (5), Bengal Tenancy Act, is at all applicable to a mortgage of this kind, viz., a mortgage which included not only an occupancy holding but a niskar or any other item of property which was not an occupancy holding. The decision of the Division Bench in Prafulla Chandra v. Soaru Mohammad : AIR1940Cal499 is that the said sub-section of the said section is applicable even to such a mortgage. The main point for consideration before us, therefore, is whether the view expressed in the decision in Prafulla Chandra v. Soaru Mohammad : AIR1940Cal499 is correct or not. If we hold that it is correct, no further action need be taken by us, but if we do not agree with that decision, the only course which would be open to us would be to, refer the matter to a Full Bench. After giving the matter our anxious consideration we are of opinion that the decision of the Division Bench which has followed the decision of another Division Bench is correct. We will shortly state the reasons why we think that Prafulla Chandra v. Soaru Mohammad : AIR1940Cal499 has been correctly decided.

3. Section 26G, as finally amended, deals wife usufructuary mortgages and other kinds of mortgages in respect of occupancy holdings in which possession has been given to the mortgagee. We need [not?] in this case consider anomalous mortgages, that is to say, mortgages by conditional sale or simple mortgages where possession has been delivered to the mortgagee of the mortgaged properties, because what is for consideration before us is a usufructuary one. Sub-section fist) of Section 26G provides that where a usufructuary mortgage has been executed before the commencement of the Bengal Tenancy (Amendment) Act, A928, that mortgage is to be deemed to have taken effect as a complete usufructuary mortgage foe the period mentioned in the instrument or for is years, whichever is less. In the case of a usufructuary mortgage the 15 years is to be counted from the date of the registration of the mortgage. This is indicated in Sub-section (5) of the said section. This provision taken along with the definition of on of a complete usufructuary mortgage is given in Sub-section (3) of Section 3 of the Act extinguishes the mortgage over the occupancy holding as soon as the period mentioned in Sub-section (1a) expires. Sub-section (3) repeats the same idea, indicates the starting point from which the 15 years is to be counted and provides for the procedure to be followed by the mortgagor in getting back his property. As Sub-section (1a) extinguishes she mortgage in respect of the occupancy holding, he would have the right to get back the holding from the mortgagee after the period mentioned he that Sub-section. Taken with Sub-section (5), it comes to this that he would be entitled to get back possession of the property not through a suit for redemption but an application by him would be sufficient. Reading the scheme of Section 26G the legislature extinguishes the security never occupancy holding as soon as the period mentioned in the usufructuary mortgage or the period of 15 years to be calculated as mentioned above, whichever period is less, expires. In the case before us, the usufructuary mortgage was executed on a date prior to the date when the Bengal Tenancy (Amendment) Act, 1928, came into operation. The mortgagor was an occupancy raiyat and the mortgaged property in respect of which this application is made is an occupancy holding. No doubt the mortgage included niskar also. Actually the case comes within the terms of Section 26G. In accordance with the rule of construction indicated by the Judicial Committee of fee Privy Council in Renula Bose v. Manmatha Nath where their Lordships were construing Sub-section (5) of Section 36, Bengal Money Lenders Act, we hold that the mortgagor of a usufructuary mortgage executed before the Bengal Tenancy (Amendment) Act, 1928, which included not only occupancy holdings but also properties of other description, is entitled to get back possession on an application under Sub-section (5) of Section 26-G, Bengal Tenancy Act as soon as the period mentioned in Sub-section (1) thereof expires, for factually, the requirements of that section, are complied with although the mortgage may have included as security a property which is not the holding of an occupancy raiyat.

4. We are not impressed by the argument that such a proceeding would have the effect of breaking up the mortgage security by allowing piecemeal redemption. No doubt it is a general principle that the mortgage security cannot be split up at the instance of the mortgagor for the purpose of allowing him piecemeal redemption, but undoubtedly the statute can intervene and allow in specific cases splitting up of the mortgage security by allowing piecemeal redemption. The proviso to Section 60, Transfer of Property Act itself mentions such a case and the legislature could by statute undoubtedly introduce other cases allowing piecemeal redemption. The aforesaid argument, therefore, would not, in out opinion, be used for the purpose of making inapplicable the provisions of Section 26-G, Bengal Tenancy Act to a mortgage which includes occupancy holdings as well as other kinds of immovable property.

5. Whether the effect of the order for restoration of possession of the raiyati holding would have the effect of splitting up the consideration for the mortgage, viz, the principal lent, is a question which is not before us. That question whether, the principal lent will have to be apportioned on the two items of property [and whether?] sum apportioned on the occupancy is to be taken as satisfied will have to be considered if later on a suit for foreclosure or redemption is instituted. We accordingly agree with the conclusion reached by the Division Bench in Prafulla Chandra v. Soaru Mohammad : AIR1940Cal499 .

6. The next point for consideration is whether the plaintiffs Gokul Chandra Daw is entitled to maintain this application. It is admitted before us that the property was the stridhan property of his wife Ful Kumari. It is also admitted before us that Ful Kumari did not leave any person who would come within the first group of heirs of stridhan property, viz., son, daughter's son their sons or the son or grandson of a rival wife. Amongst the second class of stridhan heirs are the brother, father, mother, husband; but the preference amongst them is determined by two facts: (1) the form of marriage and (2) the nature of the stridhan. Having regard to the fact that the other five of the six forms of marriage with Daiva have fallen into disuse in modern times it may be presumed that the marriage of Ful Kumari with her husband Gokul Chandra Daw was in the Brahma form. In fact the finding of the Courts below that the marriage was celebrated in that form is not challenged before us by the learned advocate appearing in support of the Letters Patent Appeal but the question is what was the nature of the stridhan. If it fell within the first class of stridhan enumerated in the Tagore Law Lectures (5th Ed.) by Sir Gooroodass Banerjee at pp. 489 and 490, the husband would come before the mother, but if the stridhan fell within the second class, the mother would be preferred to the husband. In his application Gokul Chandra Daw stated that this was the stridhan property of his deceased wife and that he was her heir. In the petition of objection there was a general denial that he was the heir of Ful Kumari and it was stated that there was a preferential heir. When Gokul Chandra was being cross-examined, the mortgagee put two questions to him, viz., (1) whether there was any other relation who had survived Ful Kumari, and Gokul answered that she left a mother behind, and (2) when was the property acquired by the lady, and the answer was 'after the marriage.' The matter was left there by the pleader appearing on behalf of the mortgagee. At the time of the argument, however, the mortgagee urged that the husband could not be the heir because from those two answers given by him in cross-examination the property could not be considered the Yautuka property of Ful Kumari. We do not quite follow that argument. No doubt the property was acquired by the lady some time after her marriage but it is the source of the purchase money that is material. If it bad been purchased with the money that she had obtained as Yautuka at the nuptials it would be her Yautuka property for then it would be taken to have changed its form or shape, viz, the conversion into immovable property. Having regard to the vague nature of the objection and the vague nature of the cross-examination, we are not prepared to accede to the argument of the learned advocate appearing in support of the appeal to remand the case for a further investigation as to the precise nature of the stridhan.

7. The result is that the appeal is dismissed with costs.

Sharpe, J.

8. I agree.


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