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TMI Blog1969 (9) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual and derived income from property, business and other sources. In the assessment for all the three years mentioned above the Income-tax Officer included a sum of Rs. 2,550 as income from other sources being rental of certain shops stated to have been let out by the assessee. The shops came into the possession of the assessee by virtue of a registered agreement dated January 2, 1947, the parties to that agreement being the assessee and one Junglee Koiri. A piece of land situated in village Sarso, District Azamgarh, belonged to Junglee Koiri which had been mortgaged by him to a third party. By means of an agreement dated January 2, 1947, it was agreed between him and the assessee that the latter would pay up the earlier mortgage amounti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 948, against a sum of Rs. 4,000 paid by the five sons of the assessee to the mutawallis of the mosque. There was yet another item of Rs. 750 which had been included by the Income-tax Officer in the income of the assessee as rent from a house. The assessee's case with regard to that item was that, though the house originally belonged to him, he had, in lieu of dower debt, transferred the same to his wife in the year 1937. Having failed before the departmental authorities and the Income-tax Appellate Tribunal the assessee moved an application under section 66(1) of the Act and the Tribunal submitted the statement of the case referring only one question of law which was as follows: " Whether, on the facts and circumstances of the case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt expressed the opinion that the entire transaction was in the nature of self-liquidating or self-effacing mortgage ; in other words, there was to be no annual return on the capital but the capital itself was to be appropriated within a period of 10 years by use on the part of the assessee. The other agreements between the sons of the assessee and the mutawallis were also considered and it was held that they partook of the nature of self-liquidating mortgages. The first question was consequently answered in favour of the assessee but the second question was answered against him, the view of the Tribunal and the departmental authorities having been accepted as correct. Before us counsel for the appellant has challenged the correctness o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee. " The section relating to leases on which reliance has been placed by the counsel for the appellant is section 105. According to the definition therein a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised or of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee of rent in consideration of a sum made up of past and present advances. " When the term expired the mortgagee refused to give up the possession on the ground that he had not been able to get possession owing to the misrepresentation of the mortgagor and had not received the full benefit purported to be given by the mortgage. In a suit by the mortgagor to recover possession, it was held by the Judicial Committee that the plaintiff was entitled to rely on his proprietary right and, in the absence of any stipulation express or implied in the mortgage-deed depriving him of the right to recover possession, he was entitled to succeed. On behalf of the respondent reliance has been placed on Ishan Chandra v. Sujan Bibi. In that case, in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of principal or both, and the nature of the contract is not altered by the fact that the calculation is made beforehand of the period for which the rents and profits will be sufficient to pay off both principal and interest. There is no apparent reason why such a contract as the present should not come within the category of anomalous mortgages as defined in section 98 of the Transfer of Property Act..... ". The ratio of the Full Bench decision was applied in Mahmad Muse Umarji v. Bagas Amanji Umar, where by a deed it was provided that in consideration of a certain amount advanced to the plaintiff the defendant was to take possession of lands belonging to the plaintiff for 199 years and to apply its profits in liquidation of the deb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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