1. This is an appeal from an appellate order of the Subordinate Judge of the 5th Court, Dacca, affirming an order of the Munsif of the 5th Court, Munshiganj, allowing the application of respondent 1 for restoration of possession of lands under Section 26G, Ben. Ten. Act. The order has been passed under the section as it stands after amendment in 1940, The brother of the applicant before the Munsif mortgaged the lands to the appellant on 8th Falgun 1331, corresponding to 20th February 1925, the terms being (1) that the mortgagee would retain the rents and profits of the land in lieu of interest, (2) that the amount would be paid by Bhadra 1332, (3) on failure to pay the land would remain in the possession of the mortgagee till repayment, (4) if the amount due to the mortgagee were not fully recovered from the mortgaged property the mortgagee would be competent to realise it by attaching and putting to auction other moveable and immovable properties of the mortgagor. The mortgagor sold his interest to his brother for its. 600 the consideration being paid as to Rs. 100 in cash, and the balance was to be paid to the mortgagee.
2. Four points have been raised in the appeal; (1) that the applicant, not being the mortgagor, is not entitled to the rights under Section 26G, (2) that as the applicant has not paid the full consideration, i.e., has not paid the balance of Rs. 600 to the mortgagee, he is not entitled to recover possession, (3) that the mortgage is an anomalous mortgage and is not hit by the provisions of Section 26G, (4) that Section 26G in so far as it is held to affect anomalous mortgages is void under Section 107(1), Government of India Act, as being repugnant to Sections 68(1)(a) and 98, T.P. Act, the amendment not having received the assent of the Governor-General.
(1) As regards the first point, the learned Subordinate Judge relies on the provisions of Section 59A, T.P. Act, which enacts that references in Chap. 4 of that Act to mortgagors and mortgagees shall be deemed to, include references to persons deriving title from them respectively. For the appellant, it is pointed out that the provision only covers references made in chap. 4, T.P. Act, and it is urged that it will not cover references in Section 26G, Ben. Ten. Act. It is to be noted that Section 59A was inserted in the Transfer, of Property Act by the Amending Act, 30 of 1929, but that previous to its insertion a similar reference had been taken as intended; indeed the chapter is not very intelligible unless this is assumed, the rights as between persons deriving title from the mortgagors and mortgagees respectively would be left very much in the air without such an assumption. The learned Subordinate Judge remarks that as in the present case the transfer was made before the amendments were made in 1938 to Section 26G, no mala fides or speculation can have been intended, and it is a fact that the transfer was to the brother of the mortgagor. But if the transfer had been to a speculator there is no obvious reason why the Legislature should have intended to give him the benefits of Section 26G and the fact that the present case is a good one will not help in the interpretation of the section. But an examination of the section as a whole suggests that an assumption is to be made that those deriving title from the mortgagor and mortgagee respectively are intended to be covered by the terms mortgagor and mortgagee as laid down in Section 59A, T.P. Act. For example, a mortgagor can hardly have been intended to be deprived of compensation under the proviso to Sub-section (5) where the mortgagee had transferred his interest and his transferee had remained in possession beyond the statutory period. Similarly, as regards the special provisions in Sub-sections (8), (9), (10), (11) with regard to mortgages by conditional sale; a mortgagor, for example, can hardly have been intended to be deprived of the benefit of Sub-section (9) because the person in possession was not the original mortgagee but some person deriving title from him. On the whole, therefore, we think that the decision of the learned Subordinate Judge Ion this point is sound, and this point of the appellant fails.
(2) The second point raised by the appellant also appears to have no substance; there has been an out and out transfer of interest to the applicant, the matter of the consideration outstanding is between him and his vendor.
(3) The third point raised by the appellant is important and involves a somewhat detailed examination of the terms of Section 26G. Our conclusion is that Section 2SG does apply to anomalous mortgages, but that in view of the special terms of Sub-section (5) the remedy by way of application provided therein is not open to the mortgagors in such cases. It seems that there was probably an oversight at the time of amendment in 1940. We are here concerned with an anomalous mortgage entered into in 1925 by an occupancy raiyat, i.e., before the amendment of 1928, in which delivery of possession has been given to the mortgagee. We consider that the fourth term referred to above takes the present out of the category of pure usufructuary mortgage as defined in Section 58(d), T.P. Act. Section 26G(1a) enacts:
Notwithstanding anything contained in this Act or ID any other law for the time being in force or in any contract, any mortgage...entered into by an occupancy raiyat in respect of his holding in which possession of land is delivered to the mortgagee-
(a) which was so entered into before the come mencement of the Bengal Tenancy (Amendment) Act, 1928 and was subsisting on the 1st day of August 1937...shall be deemed to have taken effect as a complete usufructuary mortgage for the period mentioned in the instrument or for fifteen years whichever is less.
3. The present mortgage clearly fulfils all the requirements of this provision, and is hence to be 'deemed' accordingly. There is no 'period mentioned in the instrument' in this case, in our opinion. We refer to the definition of 'complete usufructuary mortgage' given in Section 3(3) Ben. Ten. Act. It means a transfer by a tenant of the right of possession in any land for the purpose of securing the payment of money or the return of grain advanced or to be advanced by way of loan upon the condition that the loan, with all the interest thereon, shall be deemed to be extinguished by the profits arising from the land during the period of the mortgage.
4. The Legislature seems to have shown an unnecessary fondness for the use of the word 'deemed' in legislating on this subject. The words underlined above in the definition are superfluous: the agreement of the parties to such a mortgage will be that the loan with all the interest will in fact be paid by the profits arising from the land and so the whole mortgage money will be paid off and the debt extinguished. The verb 'deem' is customarily employed when something 'A' is to be taken to be 'B' when it obviously is not in fact 'B' at all. It is so used in Section 26G(1a) when the Legislature enacts that mortgages which are manifestly not 'complete usufructuary mortgages' are to be taken to be such, where it, so to speak, re-writes the mortgage deed, and, provided that the deed is one of mortgage with delivery of possession, enacts that it shall read as if it contained the terms of a 'complete usufructuary mortgage,' with a period as laid down.
5. The phrases 'period of the mortgage' in Section 3(3) and 'period mentioned in the instrument' in Section 26G(1a) must refer to the period, if any, agreed upon between the parties as that at the end of which the rents and profits of the land shall have paid off the mortgage money. In the present deed, there is a term for payment in Bhadra, but this cannot be the period referred to. There is then provision that in default the mortgagee is to retain the property until the principal money is paid, the interest being paid out of the rents : there is no time limit to this. It is a characteristic of a usufructuary mortgage that there is no time limit, but in the type defined in the Tenancy Act as a 'complete usufructuary mortgage' a period is agreed on as one during which the mortgage money will be paid off out of rents and profits. Under the terms of such an agreement, the mortgagor is entitled at the end of this period when the mortgage money has been paid off to get back his property under the provisions of Section 62, T.P. Act, on his title by a suit for possession (cf. Mulla's Transfer of Property Act, (Edn. 2), commentary on Section 62 p. 400 Edn. 2). If the deed affected by Section 26G be a deed of that type, then if the 'period mentioned in the instrument' ('period of the mortgage') be leas than 15 years, then the term will stand; if greater than 15 years, then the agreement between the parties will be 'deemed to be' for a period of 15 years. In the deed under consideration, there being no period mentioned, it is to be taken as 15 years. We have now to consider the terms of Section 26G(5) of the Act. From what has been said above, it will appear that a good deal of the provisions made in this sub-section is superfluous. This can be clearly seen in the case of a complete usufructuary mortgage for a period of 15 years entered into as such by a registered instrument. Even if Section 26G did not exist, the mortgagor executing such a mortgage bond would, on the mortgage money being paid off, as agreed, at the end of the period, recover possession of his land by suit under the provisions of the Transfer of Property Act. Nevertheless Section 26G(5) enacts:
Notwithstanding anything contained in this Act or in any other law or in any contract, the consideration (with all interest thereon) for ft complete usufructuary mortgage...shall be deemed to have been extinguished on the expiry of the period (a) mentioned in the instrument of mortgage from the date of registration of the instrument...and the mortgagor shall thereupon become entitled to possession of the mortgaged property....
This adds nothing whatever to the law as it stood before this was enacted. The parties ex hypothesi having agreed that the consideration and interest are to be 'extinguished' at the end of the period, the section solemnly enacts that it is to be deemed to be extinguished, and that the mortgagor will recover possession of his land which he is naturally entitled to do by virtue of his agreement. Similarly, where the deed between the parties is to be 'deemed to be' a 'complete usufructuary mortgage' for fifteen years or the 'period mentioned in the instrument, 'whichever is less, under Section 26G(1a) then, under the provisions of the Transfer of Property Act the mortgagor will be entitled at the end of the period to recover his land by suit on his title. All that Sub-section (5) of Section 26G adds to Sub-section (1a) and the existing law is to provide a procedure by way of application instead of by way of suit. There is also provision that the 'period' dates in the case of mortgage by a registered document from the date of the registration and from the date of possession in other cases. In the case of some anomalous mortgages some such provision is needed. The point made for the appellant rests on the fact that Sub-section (5) of Section 26G provides:
Notwithstanding anything contained in this Act or in any other law or in any contract, the consideration (with all interest thereon)...for another form of usufruotuary mortgage deemed under Sub-section (la) to have taken effect as a complete usufructuary mortgage...shall be deemed to have been extinguished...etc.
6. If the term 'another form of usufructuary mortgage' is strictly interpreted, then the sub-section does not apply at all to anomalous mortgages. It was held by this Court in Sheikh Akbar Ali v. Sheikh Mafizuddin : AIR1942Cal55 that the usufructuary mortgage referred to in Section 26G as it stood before amendment was the pure usufructuary mortgage as defined in the Transfer of Property Act. Moreover Sub-section (4) specifically analyses the possible cases, since this was necessary for distinguishing the different types for the purposes of the provisos to the sub-section, the dates of execution being important and 9 affecting different types differently. Clause (a) of the sub-section deals with the complete usufructuary mortgage, Clause (b) with the usufructuary mortgage other than a complete usufructuary mortgage, and Clause (c) with other mortgages with delivery of possession exclusive of those mentioned in Clause (a) and (b). In the face of this it is impossible to give any loose interpretation to the term 'another form of usufructuary mortgage' used in Sub-section (5). The sub-section thus does not apply to the class referred to in Section 26G (4)(c). The result is, however, not in our opinion, that the benefits of Section 26G are not substantially given to mortgagors in respect of mortgages of this class, but merely, for the reasons given above, that such mortgagors are left to their ordinary remedy by way of suit, as would have been the case had they in fact executed 'complete usufructuary mortgages' for a period of 15 years (or less), and had Section 26G not been enacted at all. If it could be held that Section 26G(1a) gave the right to recover possession to mortgagors of the class mentioned in Sub-section (4)(c), but that Sub-section (5) as framed in some way took it away, it might then be necessary to consider which of the clauses would prevail, each being prefaced by the phrase, 'notwithstanding anything contained in this Act.' This then disposes of the third point raised by the appellant, he succeeds to the extent that it is held that the remedy of respondent 1 is by way of suit, not by application under Sub-section (5).
(4) The question whether Section 26G is void for repugnancy to any existing Indian law has recently been disposed of by us in Civil Rule No Monmohan Das v. Parswanath Das reported in : AIR1943Cal588 . In the present case an additional argument is adduced by the appellant, based on Section 98, T.P. Act. As that section merely enacts that in the case of anomalous mortgages the parties will be bound by their contract, then in so far as the contract relates to the (agricultural) land, and the matter of its transfer is in question, which is all we are concerned with here, this is clearly a matter excluded from the concurrent list III, item 10, and is therefore a matter under item 21 of list II of the Provincial List. The question of repugnancy, therefore, cannot arise. In so far as the contract relates to the payment of the money, we are not concerned with that question now; it may arise if the mortgagee sues for the principal money. We may merely remark that we see nothing in Section 98 or in Section 68(1)(a), T.P. Act, for that matter, which provides that a contract otherwise illegal must be enforced. Section 37, Contract Act, also specifically exempts performance of contracts where performance is dispensed with or excused under any law. This appeal is accordingly allowed and the order of the lower Court is set aside. There will be no order as to costs. Certificate under Section 205. Government of India Act is granted.