Soshi Bhusan Bose vs Sahadeb Shaha

Banerjee, J.—In this appeal, which arises out of a suit to enforce a mortgage bond, two points have been urged by the learned vakil for the Defendant No. 2, who is the Appellant before us; first, that the judgment of the lower Appellate Court is not in accordance with law, and, second, that the lower Appellate Court is wrong in holding that sec. 12 of the Bengal Tenancy Act does not apply to this case, when it ought to have held that the mortgage bond in this case is invalid by reason of its not being in accordance with the provisions of that section. Upon the first point, though the judgment of the lower Appellate Court is somewhat meagre in its statement of the reasons for the conclusion arrived at, we are not prepared to hold that it is bad in law and ought to be set aside by reason of its not complying with the provisions of sec. 574 of the Code of Civil Procedure.

On the second point, however, we are of opinion that the lower Appellate Court is wrong in the view taken by it. The mortgage in question is one which is, according to the finding, or, rather, more correctly speaking, the assumption of the lower Appellate Court, a mortgage of a permanent tenure. Sec. 12 of the Bengal Tenancy Act, sub-sec. 1, provides that the transfer of a permanent tenure by sale, gift or mortgage (other than a transfer by sale in execution of a decree or by summary sale under any law relating to putni, or other tenures) can be made only by a registered instrument, and the mortgage here is not by a registered instrument. That being so, the mortgage is clearly in contravention of the terms of sec. 12 of the Bengal Tenancy Act. But then the lower Appellate Court is of opinion that, according to the provisions of sec. 59 of the Transfer of Property Act, para. 2, which does not require a registered instrument for effecting a mortgage where the money secured is less than Rs. 100, the mortgage in question is valid as between the mortgagor and mortgagee, though it may not be valid as between the landlord of the mortgagor and any person claiming under the mortgage as against such landlord.

We do not think that this view is correct. Sec. 6 of the Transfer of Property Act says that property of any kind may be transferred except as otherwise provided by that Act or by any other law for the time being in force. Sec. 11 of the Bengal Tenancy Act, which had come into force at the date when the mortgage bond was executed, provides that every permanent tenure shall, subject to the provisions of the Act, bo capable of being transferred and bequeathed in the same manner and to the same extent as other immoveable property; and one of the provisions of the Act referred to in sec. 11 is that contained in sub-sec. 1 of sec. 12. Therefore the transferability of a permanent tenure is allowed by the Bengal Tenancy Act only where the transfer is made in a certain way, and this limitation to the transferability of a permanent tenure is a limitation to which the provisions of the Transfer of Property Act must be taken to be subject, having regard to sec. 6 of the last mentioned Act.

It was argued, by the learned vakil for the Respondent, that the provisions of the Bengal Tenancy Act apply only to cases between landlord and tenant, and in support of this argument the case of Chunder Kishore Dey v. Raj Kishore Mozumdar ILR 15 Cal. 450 (1888) was cited as showing that with reference to another provision of the Bengal Tenancy Act, namely, that contained in Art. 3 of Part I of the third schedule, it has been held that that provision applies only to suits as between landlord and tenant.

It is quite true that Art. 3 of Part I of Sch. 3 of the Bengal Tenancy Act has been held to apply only to suits as between landlord and tenant, but the language of that article is such as would of itself go to show that it was intended to apply only to suits as between landlord and tenant. And we may refer to see. 88 of the Bengal Tenancy Act as further showing that, where any provision of the Bengal Tenancy Act is intended to be operative only upon a matter arising as between landlord and tenant, it has been expressly so stated.

The object of sec. 12 seems to us to have been to ensure the payment to the landlord of the fee which the Legislature thought he was entitled to upon the transfer of a permanent tenure, as much as to secure the right of the transferee; and that object would be frustrated if the mortgage in this case be given effect to. For all these reasons, we are of opinion that the view, taken by the lower Appellate Court, that the mortgage is valid and should be enforced in this suit, assuming the mortgaged property to be a permanent tenure, is wrong in law. The decree of the lower Appellate Court must, therefore, be set aside; and as the lower Appellate Court has not determined the fact, whether the mortgaged property is a permanent tenure or not, we think that the case must be remanded to that Court in order that that point may bo determined. The costs of this appeal will abide the result.