SRIMATYA GAYAMANI BEWA Vs. DHARANIDHAR JANA PANCHANAN JANA

JUDGEMENT

(1.) THIS Rule in our opinion must be made absolute. The petitioner before us is the mortgagor and the Rule is directed against an order passed by the Munsif, First Court, Diamond Harbour, in a proceeding under Section 26-G, Ben. Ten. Act. The application for restoration of possession of the mortgaged property was rejected by the Munsif on the ground that the mortgage in question was not an usufructuary mortgage as contemplated by Section 3, Claulse (3), Ben. Ten. Act, and nor could it take effect as such under Section 26-G, Clause 1 (a) of the Act. The document has been placed before us. The mortgagor purports to mortgage 51 bighas of land to the mortgagee to secure an advance of Rs. 1400. Possession of the property was delivered to the mortgagee and there was an express covenant that the mortgagee would remain in possession till the mortgage money was paid. There was a stipulation to the effect that in case the mortgagee was dispossessed from any portion of the mortgaged property, the mortgagor would be personally liable to pay the money with interest and the mortgagee would be at liberty to sue for the same and in execution of the decree put up to sale the mortgaged property as well as the other properties of the mortgagor. We ourselves have held in similar cases that a covenant like this does not really alter the character of the mortgage. It was in the nature of an indemnity clause which was to come into effect only when the normal arrangement contemplated by the party was upset by extraordinary circumstances. We accordingly hold that the Rule must be made absolute and the application of the mortgagor under Section 26-G(5), Ben. Ten. Act, be allowed. We make no order as to costs. Mohamad Akram, J.

(2.) I agree.