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Durga Charan Maji Vs. Poresh Bewa - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1925Cal105,76Ind.Cas.336
AppellantDurga Charan Maji
RespondentPoresh Bewa
Excerpt:
- .....controversy in this appeal is with regard to the effect of a document which runs in rather unusual term. the document is said to be a sale for a term. it is said that the executant, whose reversionary heiress the plaintiff is, owed a sum of money to the defendant's predecessor. the debt at the time of the deed amounted to rs. 160 including principal and interest. then the deed runs thus: 'having no means to pay money in cash, i feel necessity to sell the jote lands of the chita and bari for a term and you have expressed your willingness to take the lands in lieu of the money from the year 1299 to the year 1348 for a period of fifty years and i sell you the lands for this period.' then, it is stated: 'after the end of the period, you will return the land to me without any excuse. during.....
Judgment:

B.B. Ghose, J.

1. This appeal is by the defendant against the decision of the Subordinate Judge of Dacca reversing the decision of the Munsif. The question in controversy in this appeal is with regard to the effect of a document which runs in rather unusual term. The document is said to be a sale for a term. It is said that the executant, whose reversionary heiress the plaintiff is, owed a sum of money to the defendant's predecessor. The debt at the time of the deed amounted to Rs. 160 including principal and interest. Then the deed runs thus: 'Having no means to pay money in cash, I feel necessity to sell the jote lands of the chita and bari for a term and you have expressed your willingness to take the lands in lieu of the money from the year 1299 to the year 1348 for a period of fifty years and I sell you the lands for this period.' Then, it is stated: 'after the end of the period, you will return the land to me without any excuse. During the period the land will remain in your possession and I shall pay the rent to the landlord.' The deed is dated the 26th of Sravan 1299 B.S. The short question is whether the plaintiff is entitled to get back the land on payment of the money to the defendant within the period of fifty years. She has sought for redemption after about twenty-six years.

2. The plea of the defendant is that the deed is not really a sale for a term, but it was really a sale out and out, that it was drawn up in these terms in order to avoid trouble with the landlord and that the lady had subsequently surrendered the holding in favour of the father of the defendant. There was also a plea of limitation urged.

3. The question, therefore, is whether the document is a sale out and out or whether it is a mortgage which the plaintiff is entitled to redeem and if the plaintiff is entitled to redeem the property whether she can do so at the present moment and upon what terms.

4. There cannot be any doubt whatsoever that notwithstanding the description in the document that it was a sale for a term it was not a sale. The lady Tirtha Bewa, who executed the document, remained liable to pay the rent of the land to the landlord and there is nothing stated in the document that her title would be extinguished. If that is so, the document is evidently in the nature of a mortgage. The next question is whether it is capable of being redeemed. If it is a mortgage for a term of fifty years it is contended on behalf of the plaintiff that the term is too long and it is Prima facie a clog on redemption and further it is said that the defendant has repudiated his position as mortgagee and claims title in himself and, therefore on equitable considerations relief should be given to the plaintiff as regards the terms of the contract. There cannot be any doubt whatsoever that the conduct of the defendant is such as to entitle the plaintiff to equitable relief. Not only did the defendant say that it was a document of sale out and out, but he took all sorts of objections to the plaintiff's title as also the plea of limitation. Under such circumstances it appears that there is no doubt that redemption of the property by the plaintiff after the lapse of fifty years will be extremely difficult if not impossible. The mortgagee therefore has not acted in accordance with the terms of the contract and is not willing to act in accordance with it. He did not take the plea that under the terms of the dead ho was entitled to remain in possession for fifty years. On these grounds the mortgagor may re-deem mortgage before the period of fifty years and the most equitable condition in favour of. the defendant is, as has been imposed by the Subordinate Judge, namely that the plaintiff should pay the full amount of the debt for which this property was made over to the defendant's predecessor. The appeal is therefore dismissed with costs.

Walmsley, J.

5. I agree.


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