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Judgment
Ram Labhaya, J.—This appeal arises out of a suit for redemption. The suit was decreed by the Munsiff of Karimganj. It was dismissed on appeal by the Sub-Judge, Upper Assam Districts. Plaintiffs have appealed.
The facts leading to this appeal are as follows. One Tilak, predecessor-in-interest of plaintiffs 5 and 6 was an occupancy tenant of the land in dispute under the superior landlord. On his death his rights in the property devolved on plaintiff 5 who was a minor at the time. His mother therefore managed the property on his behalf Tilak, deceased had left some debts. Plaintiff 6, the mother who was in charge of the property, executed a deed of mortgage in favour of defendants 1 and 2 on 11-9-1942 in consideration of a sum of Rs. 300/-.
The mortgagees were put in possession. On attaining majority plaintiff 5 sold the land to plaintiffs 1 and 4. The mother also joined in the execution of the registered deed of sale dated 18-3-1947. Plaintiffs wanted to redeem the property but defendants did not agree. Plaintiffs sued to redeem and redemption was claimed under the provisions of Section 34, Sylhet Tenancy Act on payment of Rs. 150/-. The suit was resisted by defendant 1. Defendant 2 died during the pendency of this suit. By an order dated 20-8-1948 plaintiffs were exempted from bringing on record the heirs of the deceased defendant under Order 22 Rule 4 as amended by the Calcutta High Court.
The suit was resisted on the ground that the Kot Kabala was executed as plaintiff 5 was a minor at that time. The agreement between the parties was that the land would be sold to the defendants. It was merely by reason of the minority of the defendant that a Kot mortgage was executed. There was a contemporaneous agreement of sale by winch it was stipulated by plaintiff 6 on behalf of plaintiff 5 that on plaintiff 5''s attaining majority a sale deed in favour of defendants on payment of another sum of Rs. 50/- would be executed by him. Plaintiffs it was averred, had purchased land without any consideration by a collusive deed of sale and they had no interest in the properly.
The learned Munsiff came to the conclusion that the plaintiffs were entitled to redeem the property. The decree for redemption was passed against the contesting defendant and also against the heirs of the deceased defendant on payment of Rs. 150/-. Defendant 1 alone appealed. The learned Sub-Judge found that Section 34, Sylhet Tenancy Act was not applicable to the case. It applied only to usufructtuary mortgages and as the case was not covered by Section 34 of that Act, the suit was not maintainable.
On behalf of the plaintiffs the learned Counsel has raised a two fold contention. He argues that the mortgage sought to be redeemed was within the ambit of Section 34 as amended and in any case the right to redeem was there and they could redeem on payment of the full amount even if Section 34 was found to be not applicable.
Before considering the contention raised on behalf of the plaintiffs a preliminary objection raised by Mr. Ghose, the learned Counsel for the respondent may be taken notice of. He has pointed out that plaintiffs have not impleaded the legal representatives of a deceased defendant and the appeal therefore is not properly constituted. As slated above the defendant died during the pendency of the suit in the first Court and it was then that the Court after a consideration of the question and acting under Clause 4 of Rule 4 of Order 22 directed that the representatives of the defendant need not be brought on the record.
The deceased defendant had not appeared to contest the suit. Clause 4 as added to the rule by amendment by the Calcutta High Court provided that the Court, whenever it sees fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. The appeal would be properly constituted if Clause 4 of Rule 4 of Order 22 is in force in this Province as well.
The order is covered by this provision and was not challenged at any earlier stage of the proceedings by defendant 1 who was contesting the case. Mr. Ghose, however, has argued that the amendment was made by the High Court of Calcutta before this High Court came into being and therefore it could not be regarded as being in force in or applicable to this Province. It was admittedly applicable before the Assam High Court was established. By virtue of Section 6 of the Assam High Court Order, 1948, Clause 4 introduced into Rule 4 would apply and would be deemed to be in force even in this Province. The provisions of Section 6 of the Order are to the effect that
Subject to the provisions of this Order, the law in force immediately before the prescribed day with respect to practice and procedure in the High Court in Calcutta shall, with the necessary modifications, apply in relation to the High Court of Assam, and accordingly that High Court shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the prescribed day exercisable by the High Court in Calcutta:
Provided that any rules or orders which are in force immediately before the prescribed day with respect to practice and procedure in the High Court in Calcutta shall, until varied or revoked by rules or orders made by the High Court of Assam, apply with the necessary modifications in relation to practice and procedure in the High Court of Assam as if made by that Court.
The operative part of this section coupled with the proviso lays down a very comprehensive rule relating to matters of practice and procedure. Unless the procedure or the practice which prevailed before this Court was established is varied or revoked, the preexisting provisions of procedure and practice both would continue to apply. A modification which was inserted in Rule 4 of Order 22 by the Calcutta High Court may well therefore apply and the order passed under that provision would be valid.
The objection however can be overruled on a simpler ground. The order which is quashed now was between the parties to the case. The legality of the order was not questioned by defendant 1 and it is too late now for him to challenge its validity. He himself appealed from the decree of the trial Court. When appealing he did not bring the deceased defendant on record in his appeal. The omission may not be a complete answer to the objection but there is also the circumstances that he did not attack the validity of the trial Court decree on the ground that all necessary parties were not before the Court.
The present appeal in these circumstances is validly constituted and may not fail by reason of the failure on the part of the appellants to implead the heirs of the deceased defendants. The omission is due to an order of the Court which has remained unchallenged so far by the defendant and he cannot now be permitted to object to the disposal of the case on that basis.
On the merits the first question is whether the deed of mortgage which forms the basis of the claim for redemption is covered by the provisions of Section 34, Sylhet Tenancy Act 1936 as amended. Section 34(1) before it was amended provided that
an occupancy raiyat shall not be entitled to enter into any form of usufructuary mortgage in respect of his holding or a portion or share thereof, except a complete usufructuary mortgage which may be for any period which docs not and cannot, in any possible event, by any agreement, express or implied, exceed nine years:...
The explanation to the section defines a complete usufructuary mortgage''. It is not necessary to reproduce the other provisions of this section. The section creates a prohibition against an occupancy raiyat. He was not entitled to enter into any form of usufructuary mortgage not covered by the section. The amendment also had the effect of permitting him to enter into a usufructuary mortgage which answered the description of the complete usufructuary mortgage. The Act was amended by the Sylhet Tenancy (Amendment) Act, 1943. Section 34(1) of this amended Act provided that
an occupancy raiyat may enter into a complete usufructuary mortgage in respect of his holding or a portion or share thereof for any period which docs not or cannot, in any possible event, by any agreement express or implied, exceed nine years; and notwithstanding anything contained in this Act or in any other law or in any contract, no other form of usufructuary mortgage so entered into after the commencement of this Act shall have any force or effect.
Clause 2 of Section 34 provided that
notwithstanding anything contained in this Act or in any other law or in any contract, every usufructuary mortgage subsisting on the date on which the Sylhet Tenancy (Amendment) Act, 1943, comes into force which was so entered into before the commencement of this Act shall be deemed to have taken effect as a complete usufructuary mortgage for the period mentioned in the instrument or for the twelve years, whichever is less.
This provision embraces within its scope usufructuary mortgages entered into before its commencement. Clause 3 provided that
notwithstanding any contract to the contrary entered into before or after the commencement of this Act such a complete usufructuary mortgage or a mortgage referred to in Sub-section (2) may be redeemen at any time before the expiry of the periods referred to in Sub-section (1) or Sub-section (2), as the case may be.
All these provisions relate to usufructuary mortgages. Under Clause 2, the usufructuary mortgage if not complete usufructuary mortgage can take effect only as a complete usufructuary mortgage. Clause (3) permits redemption at any time within the periods referred to in Clause 2. Plaintiff claimed redemption on payment of Rs. 150/- under Clauses 2 and 3 reproduced above.
The relevant provisions of the parent Act and the amending Act have been reproduced above. They deal with usufructuary mortgages by occupancy tenants governed by the Sylhet Tenancy Act. Section 29 of the parent Act provides that
the interest of an occupancy raiyat in his holding or portion or share thereof shall, subject to the provisions of this Act, be capable of being transferred in the same manner and to the same extent as other immovable property.
This section gives wide powers of transfer, but these are subject to the provisions contained in the Act. The power would thus be curtailed by Section 84 which imposes restriction on the power of transfer if it takes the form of a usufructuary mortgage. The expression ''usufructuary mortgage'' is not defined in the Act and refers admittedly to what is usufructuary mortgaga under the general law. Section 34 as it stood before the amendment, permitted the tenant to enter into usufructuary mortgage in respect of his holding. But it was necessary that it should be a complete usufructuary mortgage, which may be for any period which does not and cannot in any possible event by agreement express or implied, exceed nine years.
The restriction imposed by this section was that the usufructuary mortgage must be in the form permitted by Section 34 and the period should in no case exceed nine years. The amending Act of 1943 extends the privileges of the tenant to a certain extent in respect of usufructuary mortgages. The explanation to the amended Act which defines complete usufructuary mortgage'' has remained unaltered. The main provision of Clause (1) of Section 34 as amended is that an occupancy raiyat may enter into a complete usufructuary mortgage the period of which may not exceed nine years.
The further provision of Clause (1) is that notwithstanding anything contained in this Act or in any other law or in any other contract, no other form of usufructuary mortgage so entered into after the commencement of the Act shall have any force or effect. This provision is new and it hits at usufructuary mortgages if they are not in conformity with the provisions of Section 34 as amended, but it saves from its drastic consequences that usufructuary mortgages which were not complete but were subsisting on the day the amending Act came into force.
The contention raised on behalf of the plaintiffs is that the present case falls under Clause (2) of Section 34 as amended. This clause deals with usufructuary mortgages which were subsisting on the date on which the amending Act of 1943 came into force. Its effect is that a usufructuary mortgage subsisting on the date of the commencement of the Act has to be deemed to have taken effect as a complete usufructuary mortgage for the period mentioned in the instrument or for 12 years, whichever is less. If therefore a usufructuary mortgage was existing on the date this Act came into force, it will be deemed to have been a usufructuary mortgage of the type contemplated by Clause (2).
It is therefore claimed on behalf of the plaintiffs that the mortgage in question is a complete usufructuary mortgage in law and that they have the right to ask for redemption even before the expiry of the period provided for, on payment of a proportionate sum out of the mortgage consideration. All the clauses of the section deal with usufructuary mortgages. Seen in the light of the provisions contained in the parent Act, it may be observed that the law allows to the occupancy tenant all kinds of transfers which are permitted to other owners of immovable property but there are restrictions on his right so far as usufructuary mortgages are concerned. If the mortgage is not a usufructuary mortgage, it would not be within the prohibition enacted by Section 34 as amended.
The mortgage will have operation and would not be hit by any provision contained in Section 34. If however it is a usufructuary mortgage entered into after the amending Act came into force it has no force or effect. If entered into before the enforcement of the amending Act it would operate as a complete usufructuary mortgage but a usufructuary mortgage alone would be treated as a complete usufructuary mortgage''. A simple mortgage or an anomalous mortgage for instance is outside the scope of S, 34 as amended.
The next question in the case is whether the mortgage with which we are dealing in this case can be described as a usufructuary mortgage. This mortgage was subsisting when the amending Act came into force and it it could be found to be a usufructuary mortgage the plaintiffs may well avail of the provisions contained in Section 34 as amended. The operative part of the instrument which has been described as a Kot Kabala is as follows:
I have taken Rs. 300/- as loan from you today alter keeping 11 Kedars lands out of the above lands within the boundary mentioned in the schedule be-low in mortgage to you by this Kat-Kobala, annual rent of which is Rs. 13/12/- after putting you in (sic) possession from today. I shall pay (sic) the entire amount within 3 years. If I cannot do so within this period, then the land and the homestead mentioned in the schedule below will be your property by right of purchase treating this sum as consideration for the jote land and homestead kept in mortgage, from the day following the completion of this period.
There can be no manner of doubt that this mortgage does partake of the character of a usufructuary mortgage. The mortgagor was parting with the usufruct but the document does not end there. It has got an additional stipulation and that stipulation takes the form of personal covenant. There was in this document the promise by the mortgagors that the amount of the mortgage money shall he paid within three years. This personal covenant is enforceable.
The mortgagee could sue for sale of the property at any time after the expiry of three years. In a usufructuary mortgage the mortgagee has the usufruct. He has no right of sale. A personal covenant is no part of the usufructuary mortgage as such. A personal covenant is the normal or the usual feature of a simple mortgage. Where characteristics (sic) incidents of a simple or a usufructuary mortgage are combined in one transaction the mortgage becomes anomalous. It cannot then be described as purely simple or purely usufructuary. It could then be appropriately described as an anomalous mortgage.
It may be stated here that this personal covenant remains effective notwithstanding the fact that the clause, by which the property was to be deemed to have been sold on default in payment as stipulated, would operate as a clog on the equity of redemption. The mortgage in question being an anomalous mortgage, it is not open to the tenant to claim redemption u/s 34, Sylhet Tenancy Act. A claim under the Sylhet Tenancy Act on the basis of proportionate payment of the mortgage money by reason of the mortgagee having enjoyed the usufruct for about four years or so would not be sustainable.
But as pointed out above, the Act does not hit at the transaction. It is outside the scope of Section 34. It is valid and not void. It is binding between the mortgagor and the mortgagee and therefore unless redemption is barred under any provision of the Transfe of Property Act, a suit for redemption on payment of the mortgage money would be competent. Mr. Ghose. the learned Counsel for the respondent has argued that the suit having been laid under the provisions of the Sylhet Tenancy Act and the relief also having been claimed under that Act, the plaintiffs are not now entitled to a decree for redemption even on payment of a larger sum under the Transfer of Property Act.
This contention should not prevail. The relief now claimed is not different in character from the relief originally claimed. The suit is one for redemption. The case now set up cannot be regarded as inconsistent with the original claim. It cannot also be argued that the defendant is being taken by surprise. In these circumstances there is nothing to preclude the Court from granting such relief to the plaintiffs and they are found entitled to on facts proved. The condition in mortgage by which the property could be treated as sold on default in payment within three years is admittedly not enforceable.
The right of redemption is not barred otherwise. The learned Counsel for the respondents has not (sic) that a suit for redemption under the Transfer or Property Act would not be competent or is barred by law. We would also be avoiding multiplicity of litigation if the plaintiffs are permitted to redeem on payment of the whole of the mortgage money. There is no procedural or legal prohibition which stands in the way of the Court granting this relief.
Mr. Ghose has also raised another contention. He has urged that contemporaneously with the deed of mortgage which forms the basis of the suit, there was an agreement of sale executed by plaintiff 6, the mother of plaintiff 5, who was then a minor. The agreement is one of sale and if enforceable, it would merely confer on the defendant a right to sue for specific performance of the agreement. That right, to sue for specific performance could not be set up as a defence to a suit for redemption. The mortgage is subsisting. The agreement of sale has not yet ripened into a sale. There has been no sale so far. The defendant did not sue on the basis of the agreement to obtain any decree for sale. If such a suit were instituted, it would be a question whether the mother of the minor could bind the minor with such an agreement. That may be another difficulty in the way of the defence. The agreement in the circumstances of this case is no answer to the claim for redemption that has been put forward by the plaintiffs.
In the view of the matter that we take, the appellate decree dismissing the suit shall have to be reversed and the decree of the trial Court would need modification. Plaintiffs are found entitled to a decree for redemption of the land in dispute on payment of Rs. 300/-. The trial Court''s decree will be amended to this extent.
Plaintiffs claimed redemption on payment of Rs. 150/-. They have not been able to substantiate their claim. The defendant on the other hand relied on an agreement of sale and resisted the claim of redemption altogether. They too have not succeeded in making out the case they put forward. Bella the sides put their claims too high. In these circumstances it seems equitable that the parties should be left to bear their own costs throughout. Plaintiffs shall have six months time within which to pay the amount.
Sarjoo Prosad, C.J.
I am inclined to think that the present case attracts the operation of Section 34, Sylhet Tenancy Act. In my opinion too much stress should not be laid on the anomalous feature of the document when substantially it does present the characteristic features of usufructuary mortgage. Section 34 itself speaks of a perfect usufructuary mortgage. In other words it presupposes some distinction between a perfect usufructuary mortgage and an imperfect one.
The difference in the outlook, however, affects only the quantum of the mortgage money payable by the plaintiff on redemption. Mr. Deb on behalf of the appellants has himself contended in the alternative that even if the deed is treated as a mortgage by conditional sale, he would be liable to pay the entire mortgage money within a period of grace and entitled to have redemption. In these circumstances I agree to the order proposed.