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Gangaram Majhi and ors. Vs. Bamapada Mahapatra - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal313,68Ind.Cas.301
AppellantGangaram Majhi and ors.
RespondentBamapada Mahapatra
Excerpt:
bengal tenancy amendment act (ii b. c. of 1918), section 49e, sub-section 2), 49f - power of an aboriginal to effect a mortgage of his holding to a non-aboriginal, how restricted--permission of collector, if can enlarge that power. - .....with the consent of the collector as provided by section 49f sub section (1) (a) of that act. the learned district judge has held that, under the provisions of section 49f, the collector could only grant permission to an aboriginal to effect a transfer of his holding to a non-aboriginal if the aboriginal is unable to mortgage his land to another aboriginal as provided in section 49e, sub section (1) of the act. the learned district judge has, however, held that the power of an aboriginal to effect a mortgage of his land is restricted by the provisions of section 49e, sub-section (2) of the act under which such a tenant is empowered only to make a complete usufructuary mortgage of his land and the permission of the collector cannot enlarge the power of an aboriginal to effect a mortgage.....
Judgment:

1. In this case, the sole question is, whether the adjustment of a decree by way of a simple mortgage made by an aboriginal of his holding is valid having regard to the provisions of Section 49 E, Sub-section (2) of the Bengal Tenancy Act. It appears that the mortgage was made to a non-aboriginal with the consent of the collector as provided by Section 49F sub Section (1) (a) of that Act. The learned District Judge has held that, under the provisions of Section 49F, the Collector could only grant permission to an aboriginal to effect a transfer of his holding to a non-aboriginal if the aboriginal is unable to mortgage his land to another aboriginal as provided in Section 49E, Sub Section (1) of the Act. The learned District Judge has, however, held that the power of an aboriginal to effect a mortgage of his land is restricted by the provisions of Section 49E, Sub-section (2) of the Act under which such a tenant is empowered only to make a complete usufructuary mortgage of his land and the permission of the Collector cannot enlarge the power of an aboriginal to effect a mortgage of his holding in any other way than by a complete usufructuary mortgage. We thick the learned District Judge is right in his interpretation of the provisions of the sections of the Bengal Tenancy Act referred to above. The appeal, therefore, fails and must be dismissed with costs. We assess the hearing fee at one gold mohur


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