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Ardha Chandra Saha Vs. Namani Garoani W/O Lalit Marak - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1939Cal323
AppellantArdha Chandra Saha
RespondentNamani Garoani W/O Lalit Marak
Excerpt:
- .....judgment-debtor's father executed - so we are told at the bar a simple mortgage in favour of the decree-holder and that mortgage was duly registered in accordance with the provisions of the registration act. the mortgage was given in respect of the land in question to secure repayment of a loan of rs. 300 together with interest which we are told was 75 per cent, per annum. apparently that interest had not been paid regularly if indeed it had been paid at all.2. in 1918 a statute was passed by the government of bengal which became chap. 7-a, ben. ten. act, and was numbered sections 49-a to 49-0 of that act. the purpose of sections 49-a to 49-0 was to protect these sonthals against their own improvidence or lack of business experience and to restrict the alienation of land by them......
Judgment:

Derbyshire, C.J.

1. This is an appeal from a decision of the Additional District Judge of Mymensingh upholding the decision of the Subordinate Judge, First Court, of Mymensingh setting aside an order for the sale of a certain property under a final mortgage decree. The judgment-debtor respondent who is a widow apparently inherited the property, the subject of the sale, from her father. They are both members of that primitive community called Garos who live in the districts between Mymensingh and Assam. The Garos along with other primitive communities in Bengal who are grouped together under the name of Sonthals have been the subject of protective legislation by the Government of Bengal as will hereinafter be mentioned. The appellant, Ardha Chandra Saha, is a money lender and not a member of any of these primitive communities. In 1916, the judgment-debtor's father executed - so we are told at the Bar a simple mortgage in favour of the decree-holder and that mortgage was duly registered in accordance with the provisions of the Registration Act. The mortgage was given in respect of the land in question to secure repayment of a loan of Rs. 300 together with interest which we are told was 75 per cent, per annum. Apparently that interest had not been paid regularly if indeed it had been paid at all.

2. In 1918 a statute was passed by the Government of Bengal which became Chap. 7-A, Ben. Ten. Act, and was numbered Sections 49-A to 49-0 of that Act. The purpose of Sections 49-A to 49-0 was to protect these Sonthals against their own improvidence or lack of business experience and to restrict the alienation of land by them. Originally Sections 49-A to 49-0 only applied to the Sonthals in the districts of Birbhum, Bankura and Midnapore but provision in Section 49-(A)(2) was made whereby the Local Government could, from time to time, by notification in the Calcutta Gazette, declare that provisions of Sections 49-A to 49-0 should apply to other original castes and tribes therein mentioned and amongst them to Garos. In 1923 the Government of Bengal extended the provisions of Sections 49-A to 49-0 to the Garos.

3. In 1928 the decree-holder commenced a mortgage suit against the mortgagor, the present judgment-debtor. We are told at the Bar and it is not disputed that the amount of indebtedness at that time was Rs. 2700 made up of the original principal of Rs. 300 and the interest which had accumulated since 1916. In 1929, a preliminary mortgage decree was passed and in 1932 the final mortgage decree was passed, the amount of the same being about Rupees 1500, the decree-holder having abandoned or agreed to abandon the rest of his claim. On 18th November 1935, there was a sale of the mortgage property in execution of the final mortgage decree and the decree-holder was the auction-purchaser. On 21st December 1935, that sale was confirmed. On 24th August 1936 an application was made to the executing Court to set aside the sale and, as related before, on 7th April 1937, the Subordinate Judge of the Eirst Court of Mymensingh set aside the sale and on 15th July 1937 the Additional District Judge of Mymensingh on appeal confirmed the order of the Subordinate Judge. The decree-holder auction-purchaser, the original mortgagee has appealed against the decision of the Additional District Judge. The round for the decisions of the Subordinate Judge and the Additional District Judge are that the decree for sale in this case was contrary to the provisions of Section 49-K. The appellant contends that he comes within the saving provisions of Proviso (b)(ii) to Section 49-K, that he is entitled to have the decree for sale executed, and that the order setting aside the sale was in consequence wrong.

4. Before I deal with the position under Section 49-K, I will mention some of the earlier provisions of this legislation for the protection of the Sonthals. Section 49-B provides:

No transfer by an aboriginal tenure-holder, raiyat or under-raiyat, of Ms right in his tenure or holding or in any portion thereof, by private sale, gift, will, mortgage, lease or any contract or agreement shall be valid to any extent except as provided in this chapter, i.e. Chap. 7-A.

5. Section 49-C provides:

An aboriginal tenure-holder may grant a lease to another aboriginal, to hold the land as a tenure-holder, or to cultivate it as a raiyat....

5. Section 49-D provides:

An aboriginal raiyat may sub-let his holding to another aboriginal to cultivate it as an under-raiyat.

6. By Section 49-E an aboriginal tenure-holder, raiyat or under-raiyat may enter into a complete usufructuary mortgage with an. other aboriginal for a certain period and for certain purposes but not otherwise. By Section 49-JB transfers of land may be made to persons other than aboriginal only with the consent of the Collector. By Section 49-G the Courts are not to recognize as valid transfers in contravention of the provisions of Chap. 7-A. By Section 49-H the Collector has power to set aside improper transfer by aboriginal tenure-holders. It will thus be seen that the State has placed the Sonthals under its own special protection and restricted the freedom of the aboriginals to alienate their land or to contract to deal with it in certain specified ways. That of course is in the interests of the aboriginals themselves. Section 49-K provides:

Notwithstanding anything in this Act, no decree or order shall be passed by any Court for the sale of the right of an aboriginal tenure-holder, raiyat or under-raiyat in his tenure or holding or in any portion thereof nor shall any such might Be sold in execution of any decree or order:

Provided as follows:

(a) any tenure or holding belonging to an aboriginal may be sold, in execution of a decree of a competent Court, to recover an arrear of rent which has accrued in respect of the tenure or holding;

(b) nothing in this Section shall affect any right to execute a decree for the sale of any such tenure or holding, or the terms or conditions of any bona fide contract relating thereto, if such decree was passed, or such contract registered,

(i) in the case of the Sonthals of the Districts of Birbhum, Bankura and Midnapore, before 1st November 1916, and

(ii) in the case of other castes and tribes to which this Chapter has been applied, at least one year before the date of the publication of the notification under Section 49-A, Sub-section (2), in respect to such castes or tribes;

(c) nothing in this Section shall affect any right for the sale of any such tenure or holding for the recovery of any dues which are recoverable as public demands.

7. This is not a case under Proviso (a) for an execution of a decree for arrears of rent, nor is it under Proviso (c) a proceeding for the recovery of a public demand such as taxes or rates. The judgment-debtor contends that the main provisions of the Section operate in his favour and that his tenure rights cannot be sold in execution of the mortgage decree, a contention which the Additional District Judge has upheld. The appellant decree-holder says that he comes within the Proviso (b)(ii). This is not a case of the execution of a decree for sale of the tenure where such decree was passed at least one year before the date of the publication of the notification under Section 49-A, which was in 1923; this decree was passed nine years later, in 1932. The question is - Does it come within the other part of the Proviso which, separated from the part I have just mentioned, reads as follows : Nothing in this Section shall affect the terms or conditions of any bona fide contract relating to such tenure or holding if such contract was registered at least one year before the date of the publication of the notification under Section 49-A, that is, one year before the date in 1923 on which the Act was extended to the Garos.

8. This was a simple mortgage made it was agreed, bona fide in 1916, and in that mortgage there was a promise by the mortgagor that in the event of failing to pay, according to his contract the mortgagee would have a right to cause the mortgaged property to be sold and the proceeds of sale applied to the payment of the mortgage debt. That is the effect of a simple mortgage according to Section 58(b), T.P. Act. I cannot regard that as anything other than a bona fide contract relating to the tenure or holding and as it was registered more than one year before 1923, namely in 1916, it seems to me that the mortgagee's rights under that contract are protected by Section 49-K, Proviso (b)(ii). Those rights include the sale of the property in execution of the final mortgage decree which he has obtained. Therefore I am unable to agree with the reasons which the Additional District Judge and the Subordinate Judge have given for the setting aside of this sale of the mortgaged property.

9. There is however one further provision in this protective legislation which the lower Courts do not seem to have noticed or acted upon, which in my view they ought to have noticed and acted upon. Those provisions are contained in Section 49-L which reads:

If the sale of a tenure or holding, or any portion thereof, is ordered in execution of a decree against an aboriginal tenure-holder, raiyat or under-raiyat in respect of such tenancy or portion-thereof, the Court executing the decree shall allow the tenant reasonable time in which to pay the amount due.

10. This decree was received by the executing Court on 27th July 1935 and was registered on that date. On 17th August 1935, notice was issued by the Court under Order 21, Rule 66 fixing 19th September 1935, as the date for settling the terms of the proclamation for sale. On 19th September no objection was raised by the judgment-debtor when the matter was before the Court and on 18th December the property was sold. It is clear therefore that between the executing Court receiving this decree for execution and the sale itself there elapsed a period of less than four months at the outside. There does not appear from the records any evidence that the Court allowed the tenant of the holding, in this case the judgment-debtor, a reasonable time in which to pay the amount that was due, namely Rs. 1500. In my view the provision of Section 49-L by which the Court executing the decree should allow the tenant a reasonable time within which to pay the amount due was mandatory. It was a provision enacted by the Legislature for the protection of this particular class of per. sons, the Garos, of whom the judgment-debtor was one, and it was for the Court to give that reasonable time whether it was asked for by the tenant or not. What is reasonable time depends upon the circumstances of the case, two elements - but not the only elements - being the amount of the debt and the pecuniary circumstances of the debtor. The Court not having given the debtor reasonable time within which to pay the amount due, the order for sale is invalid. The consequence is that the sale is not valid. For those reasons and not the reasons given by the learned Judges below, I am of opinion that this order setting aside the sale was right and that the appeal should be dismissed.

11. One cannot help being struck in this case by the fact that in 1916 Rs. 300 was lent; to the mortgagor and that in 1932 that debt by accrual of interest had increased to Rs. 2700, although only Rs. 1500 was asked for by the decree-holder. Even then the rate of interest having regard to the fact that there was mortgage security of lands appears to me to have been exorbitantly high. It is not for me to advise the judgment-debtor in this case, but I can say that she would be entitled to go to the Debt Settlement Board for some adjustment of that amount without suffering from any qualms of conscience. As to the costs in this appeal there will be no order. The result is that the appeal will be dismissed without costs.

Nasim Ali, J.

12. I entirely agree with the order which my Lord the Chief Justice has just now made in this appeal.


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