The Calcutta Weekly Notes Law Notes of Notes of Cases of the Calcutta High Court and of the Judicial Committee of the Privy Council and Short Notes of Important Decisions of other High Courts in India Monday July 8 1940

In the judgment the facts relating to the mortgage are thus described: it appears that the mortgagor mortgaged 31 bighas 1 chittak of land to the predcessor-in-interest of the Petitioner as serity for the sum of Rs. [...] This did not happen in the present case." It is quite clear that what in his Lordship's opinion negatived a usufructuary mortgage was that the whole of the mortgaged property was not made over to the possession of the morgagee not that the stipulation as to possesion did not cover the whole. [...] 58 (d) of the Transfer of Property Act contemplates delivery of possession of " the mortgaged property.' The case before the Judge was not a case of partial failure of delivery of possession of the " mortgaged property." There 31 bighas and odd were mortgaged and the mortgagee was allowed as stipulated in the deed to enjoy usufruct of only ten bighas and odd. [...] If the morgagee is deprived of possession or does not get possession of a portion of the properties which he is to possess under the deed and elects to remain satisfied with possession of the balance there is no question that the character of the usufructuary mortgage is altered. [...] But when the person does not himself redeem the mortgage that is to say does not himself pay the money out of his own pocket in excess of his contractual liability but advances money to a mortgagor and the money is utilised for payment of a prior mortgage whether the money is atually paid through the hands of the morgagor or is paid through the hands of the mortgagee the latter acquires