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Appeal from Appellate Decree No. 1115‑of 1961, decided on 18th June 1965.

constitut ing special remedy given by special Act, must be treated on a footing separate from general rights of mortgagor against mortgagee ‑ Mortgagor, on expiry of period of 15 years, becomes entitled to obtain possession of mortgaged property without showing that mortgage‑debt has been wiped out‑Transfer of Property Act (IV of 1882), S. 62‑Usufructuary mortgage-- Redemption‑Mortgage does not cease to be usufructuary mortgage because special relief under S. 26‑G, Bengal Tenancy Act, 1885, is claimed in suit or that mortgage‑deed is made with reference to that section.

The contention that an application under section 26‑G of the Bengal Tenancy Act attracts the provisions of Article 181of the Limitation Act must be upheld on the ground that such an application, which constitutes a special remedy given by a special Act must be treated on a footing separate from the general rights of a mortgagor against the mort gagee by which the former is entitled to redeem the mortgaged‑property within a period of sixty years. It is also clear that a mortgagor can redeem the mortgaged‑property from the mortgagee in a usufructuary mortgage by showing that the enjoy ment of the fruits of the mortgaged‑property has wiped out the debt. Under the general law it would have to be investigated whether, in fact, the debt has been so wiped out.

The special relief which is given by section 26‑G of the Bengal Tenancy Act is that, on the expiry of a period of fifteen years the mortgagor would be immediately entitled to obtain possession of the mortgaged‑property without showing that the mortgage debt has been, in fact, wiped out.

The mortgage does not cease to be a usufructuary mortgage under the Transfer of Property Act because special reliefs under section 26‑Gare claimed in the suit and because the mortgage‑deed is stated to have been made with reference to the said section 26‑G of the Bengal Tenancy Act.

Shamsuddin Ahmed with Zinnur Ahmed for Appellants.

M. A. Rouf for Respondents.

This appeal arises out of the following circumstances: Plaintiff respondents instituted a suit for recovery of possession, by way of redemption of the suit‑land, with regard to which there was a usufructuary mortgage in favour of the predecessors of defendants 1 to 8 and .9 to 18. The case of the plaintiffs is that the Mortgage‑debt has been wiped out by the enjoyment of the usufructs of the mortgaged property and that under section 26‑G of the Bengal Tenancy Act plaintiffs are entitled to recover possession of ‑the suit‑land on the expiry of fifteen years of the date of the mortgage. By express provision of the said section 26-G the mort gage‑debt is deemed to have been wiped out on the expiry of the said period of fifteen years from the date of the usufructuary mortgage. The suit‑land was mortgaged in the year 1934 and the suit itself was instituted in the year 1959.

Defendants have admitted the original title of plaintiffs to the suit‑land. They have also admitted that a usufructuary mortgage was created in their favour by plaintiffs in the manner as alleged by the latter. Their case, however, is that subsequent to the aforesaid mortgage the landlord purchased the suit‑land in a rent‑sale and, thereafter, settled the same with the defendants. Furthermore, it is the defence case that plaintiffs had surrendered the suit‑land to the landlords, who re‑settled the same to defendants on payment of Rs. 75 to plaintiffs, who accepted the said sum of money.

Learned Munsif dismissed the suit and, on appeal, the judgment and decree passed by the learned Munsif were reversed and the suit was decreed. Hence this appeal by the defendants.

At the hearing of this appeal I was taken through the judgments pronounced by the Courts below. Learned Advocate for the appellants could not assail the findings of fact arrived at by the Appellate Court below. He, however, urged that the plaintiffs' suit was barred by the law of limitation. He has drawn my attention to the provisions of section 26‑G of the Bengal Tenancy Act and has argued that since the present suit is a suit under the aforesaid section 26‑G, it is barred by the provisions of the Limitation Act, Article 181 whereof being applicable to this case. He has urged that the plaintiffs not having filed the suit within three years of the expiry of the period of fifteen years from 1934, cannot maintain the present suit.

The enumeration of the dates given above will show that possession of the suit‑land was given to defendants in the year 1934, when the said usufructuary mortgage was effected. The period of fifteen years expired in the year 1949. The right to redemption of the suit‑land under the said section 26‑G accrued to plaintiff‑respondents in the year 1949. The suit was instituted, ten years later, i.e., in the year 1959. Learned Advocate for the appellants has contended that the suit having been instituted long after the expiry, of three years since 1949, is not maintainable, if plaintiff respondents have to rely upon the provisions of section 26‑G. To support this contention, he has relied on a decision of this Court in the case of Suresh Chandra Bose v. Sobhan Mridha (7 D R L 426) and also a decision of a Division Bench of this Court in the case of Yusuf‑ Ali v. Lokman Sarkar (11 D L R 533).

The contention of the learned Advocate for the appellants that an application under section 26‑G of the Bengal Tenancy Act attracts the provisions of Article 181 of the Limitation Act must be upheld on the ground that such an application, which constitutes a special remedy given by a special Act must be treated on a footing separate from the general rights of a mortgagor against the mortgagee by which the former is entitled to redeem the mortgaged‑property within a period of sixty years. It is also clear that a mortgagor can redeem the mortgaged‑property from the mortgagee in a usufructuary mortgage by showing tha4 the enjoyment of the fruits of the mortgaged‑property has wiped out the debt. Under the general law it would have to be investigated whether, in fact, the debt has been so wiped out.

The special relief which is given by section 26‑G of the Bengal Tenancy Act is that, on the expiry of a period of fifteen years, the mortgagor would be immediately entitled to obtain possession of the mortgaged‑property without showing that the mortgage‑debt has been, in fact, wiped out. For reasons, which I have specified above, I am in agreement with the decisions of this Court cited above.

The next question is, whether plaintiffs should be non‑suited on the ground that the suit is hit by the provisions of Article 181 of the Limitation Act.

Learned Advocate for the plaintiff‑respondents 'has pointed out that the present suit is a regular suit instituted by mortgagors against mortgagee on payment of ad valorem court‑fees computed with reference to the mortgage‑debt, under section 7 (xi) of the Court Fees Act. He has also drawn my attention to the provisions of subsection (6) of section 26‑G of the Bengal Tenancy Act, which read thus:

"An application under subsection (5) shall be accompanied by a process fee of the prescribed amount for service of notice on the mortgagee, and the Court to which such an application is made, may, after service of such notice, award to the mortgagor such compensation as appears equitable and may pass an order restoring possession of the mortgaged property to the mortgagor."

Learned Advocate for the respondents has drawn my attention to the fact that the procedure for making an application under subsection (5) of the said section 26‑G only requires the payment of a process fee of the prescribed amount for service of notice on the mortgagee. He has urged that ad valorem court‑fee is not required to be paid and need not be paid with regard to an application under section 26‑G. He has then drawn my attention to rule 880, sub‑rule (29), of the Civil Rules and Orders, Volume I, which applies to an application under section 26‑G of the Bengal Tenancy Act and has pointed out that under the aforesaid Rule such an application should be treated as a miscellaneous judicial case.

The position, therefore, resolves itself to this that although plaintiffs' suit was specifically described as an application under section 26‑G of the Bengal Tenancy Act and the mortgage deed also specifically mentions the said section, nonetheless, the position is that the transaction is admittedly a mortgage and plaintiffs are entitled to reliefs apart from special remedies given to them under section 26‑G. The mortgage does not cease to be a usufructuary mortgage under the Transfer of Property Act because special reliefs under section 26‑G are claimed in the suit and because the mortgage deed is stated to have been made with reference to the said section 26‑G of the Bengal Tenancy Act. Learned Advocate has asked me to treat the present suit as a mortgage suit simpliciter and to give the plaintiffs reliefs to which they are entitled under the general law of mortgage.

Since the present suit has been instituted in compliance with all the formalities and requirements of a regular suit, it must be held that it should be looked upon as a regular suit to redeem a mortgaged‑property. Since it is a case of a usufructuary mortgage, it would have to be seen whether the mortgage‑debt has, in fact, been paid off by the enjoyment of the usufruct of the property, even if plaintiffs are not entitled to any relief under section 26‑G of the Bengal Tenancy Act, such relief being barred under Article 181 of the Limitation Act. The period of limitation for an ordinary redemption suit is sixty years.

Plaintiffs cannot claim the special kind of relief provided by section 26‑G of the Bengal Tenancy Act, but in the present case, they are entitled to show that the mortgage‑debt has, in fact, been wiped out by the enjoyment of the fruits of the mortgaged property.

The next question is, is the mortgage‑debt existing Mr. M. A. Rouf has pointed out that it is the admitted case of the parties that the mortgage‑debt has been satisfied by the enjoyment of the usufructs of the suit‑land. He has drawn my attention to the following portion of the judgment pronounced by the learned Munsif:

"It is not disputed that the mortgage bond along with interest thereon has been more than satisfied by the enjoyment of the usufruct of the suit land by the defdts."

Learned Subordinate Judge has negatived the contention of the defendant‑appellants that the usufructuary mortgage created by plaintiffs has been substituted by a subsequent event: namely, in the first place, by the alleged auction‑purchase of the suit‑land by the landlord and, secondly, by the alleged surrender of the suit‑land to the said landlord by one of the plaintiffs. The Appellate Court below has not accepted the defendants' contention of a re‑settlement of the suit‑land. The alleged surrender of the suit‑land by one of the plaintiffs has also been held to be inopera tive apart from the fact that the defence allegation in this behalf has been disbelieved.

It is urged by the learned Advocate for the plaintiff‑respondents that the appeal should be dismissed and the decree passed by the Appellate Court below should be affirmed because, according to his submission, plaintiffs are, in any event, entitled to get back possession of the suit land.

For reasons stated above, this contention must be accepted with a modification which I indicate below:

It appears from the records of this case and from the evidence as led by the parties that a sum of Rs. 75 is alleged to have been paid to the plaintiffs. There is no clear finding to the effect that this sum of Rs. 75 was never paid by the defendants to the plaintiffs, although the story of surrender of the suit‑land by plaintiffs has been falsified. I, therefore, feel that a definite finding must be arrived at in respect of the same. If necessary, parties may be allowed to lead evidence in this behalf, but caution must be exercised in receiving such evidence.

The appeal is, therefore, dismissed and the judgment and decree passed by the Court of Appeal below are hereby affirmed subject to the condition that before plaintiffs obtain possession of the suit‑land, they must pay the defendant- appellants the said sum of Rs. 75 or any sum which they might have paid to plaintiffs in respect of the mortgage‑debt, if it is found that defendants had, in fact, paid any amount to plaintiffs in connection with the suit‑land. I direct that this part of the case be remanded back to the trial Court to come to a finding only on the question as to whether defendants had succeeded in showing payment of any sum of money to plaintiffs in respect of the mortgaged property during the subsistence of the mortgage. The judgment and decree of the Appellate Court below, as affirmed by me, would become operative in accordance with the finding arrived at by the Trial Court on the point referred to it. If defendants cannot prove payment of any money to plaintiffs, as stated above, the decree that has been passed now will immediately become operative without any further condition. Let the records be sent down with expedition and the matter sent back, on remand, should be decided with utmost expedition.

I make no order as to costs of this appeal. ,

S. Q.

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