Jharkhand High Court
Sharda Devi Singhal vs (A). Prabhat Kumar Vishwakarma on 27 September, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1
S.A. No. 157 of 1990(R)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.157 of 1990(R)
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1. Sharda Devi Singhal, Widow of Late Om Prakash Gupta, resident of Upper Bazar, Main Road (Near Upper Bazar Town Out Post) P.S. - Kotwali, District -Ranchi.
2. Pradeep Kumar Singhal
3. Rajesh Kumar Singhal
4. Krishna Singhal (Serial No. 2 to 4, All sons of Late Om Prakash Gupta, All residents of Upper Bazar, Town-Outpost, P.O. & P.S. -Kotwali, District -Ranchi
5. Sarita Agrawal, daughter of Late Om Prakash Gupta and wife of Sri Ratan Lal Agrawal, at present residing at 101/C, Ratnawali Apartment, Lalpur, P.O. -Lalpur, P.S. -Sadar, District -Ranchi.
.... .... .... Appellants Versus 1(a). Prabhat Kumar Vishwakarma, S/o Late Suresh Prasad Vishwakarma, resident of Lohra Kocha, H.B. Road, P.O. & P.S. -Lalpur, Ranchi .... .... .... Respondent
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For the Appellants : Mr. Prashant Pallav, Advocate : Mr. Parth Jalan, Advocate For the Respondents : Mr. Srijit Choudhary, Advocate PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:-
1. Heard the parties.
2. This second appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree passed by the 7th Additional Judicial Commissioner, Ranchi in Title Appeal No. 45 of 1989 whereby and where under the learned first appellate court in a judgment of concurrence has dismissed the appeal.
3. The case of the plaintiff in brief is that the plaintiff gave his suit property being one shop room to the defendant starting from 9th February, 1973 for a period of four years in lieu of advance of a loan of Rs.4,800/-, by executing a registered deed of mortgage, the nomenclature of which deed was Bhugut Bandhu mortgage. As per the terms and 2 S.A. No. 157 of 1990(R) conditions of the said Bhugut Bandha mortgage deed, the amount of loan of Rs.4,800/- shall stand liquidated at the end of 4 years and the defendant is bound to deliver vacant possession of the premises to the plaintiff after the stipulated period of four years. Due to prior good relationship between the plaintiff and the defendant, the plaintiff allowed one month's time to the defendant to vacate the premises but the defendant did not vacate the premises in-spite of repeated demands from the plaintiff. The defendant neither delivered the vacant possession of the plaintiff nor paid the mesne profit at the rate of Rs.100/- per month and continued to illegally occupy the mortgage suit premises even after the expiry of the period of mortgage till the date of filing of the suit.
Hence, the plaintiff filed the suit with a prayer for:-
(a) Decree for possession of the suit shop room.
(b) Decree of mesne profits to be passed till the recovery of possession.
(c) Decree for cost of the suit.
(d) Any other relief or reliefs to which the plaintiff is entitled to.
4. The defendant in his written statement besides challenging the maintainability of the suit on various technical grounds pleaded that the plaintiff and other owners wanted to give the suit property on monthly rent, as they were in urgent need of money for family expenses. The defendant approached the plaintiff and other owners to give the said property on monthly rent to him. The plaintiff and the other owners of the property agreed to give the suit shop on monthly rent and accordingly, the plaintiff and others gave the suit property on monthly rent to the defendant. The rent was fixed at Rs.100/- per month. Thus the 3 S.A. No. 157 of 1990(R) defendant became a monthly tenant in respect of the suit property. It is then pleaded that the plaintiff alone is not the owner of the property rather there are other owners, hence the plaintiff alone could not have mortgaged the suit property to the defendant. The defendant tendered rent to the plaintiff at the rate of Rs.100/- per month and after the adjustment of Rs.4,800/- the plaintiff refused to accept the same. Hence, the defendant immediately sent the money by money order.
5. On the basis of the rival pleadings of the parties, the learned trial court settled the following issues:
(I) Is the suit as framed maintainable?
(II) Has the plaintiff got valid cause of action for the suit? (III) Is the suit barred under the principles of Waiver, Estoppel and Acquiescence?
(IV) Is the suit bad for non-joinder of necessary parties? (V) Whether the defendant has taken the suit property on monthly rental of Rs.100/- or on mortgage? (VI) Whether the court has got jurisdiction to entertain and decide the present suit?
(VII) Whether the plaintiff is entitled to a decree for the possession of the suit shop room described in the schedule of the plaint?
(VIII) Whether the plaintiff is entitled to a decree for the mesne profits?
(IX) To what other relief or reliefs, if any, the plaintiff is entitled to?
6. The learned trial court first took up issue no. V and taking into consideration the evidence in the record both oral and documentary, 4 S.A. No. 157 of 1990(R) came to the conclusion that the defendant has taken the suit premises from the plaintiff on registered deed of mortgage on 9th February, 1973 for a period of four years. Thereafter, the learned trial court took up issue no.VIII and came to the conclusion that the defendant is in possession of the suit property illegally, hence the defendant is liable to pay mesne profit of Rs.100/- per month. The learned trial court disposed of the issue no.III as not pressed. In respect of issue no.IV, the learned trial court concluded that the suit is not bad for non-joinder of necessary parties. Thereafter the learned trial court took up issue no.VI and upon admission of the defendant came to the conclusion that the trial court has jurisdiction to entertain and decide the suit. Thereafter, the learned trial court took up issue no.VII and basing upon the Exhibit -3 which is the registered deed of mortgage dated 09.02.1973, came to the conclusion that as the amount of loan of Rs.4,800/- has already been liquidated at the end of four years i.e. on 08.02.1977 and since then the defendant is in possession of the suit premises illegally, therefore, the plaintiff is entitled to a decree for possession of the suit room. Lastly, the learned trial court took up issue nos. I, II & IX together and came to the conclusion that the suit as framed and filed is maintainable, the plaintiff has a valid cause of action and went on to decree the suit on contest with costs and mesne profit. The trial court directed the defendant to give the possession of the suit premises to the plaintiff. The defendant was also directed to give mesne profit to the plaintiffs at the rate of Rs.100/- per month from the date of filing of the suit till the date of recovery of possession.
7. Being aggrieved by the said judgment and decree passed by the trial court, the defendant preferred Title Appeal No. 45 of 1989 in the court of Judicial Commissioner, Ranchi and the same was ultimately 5 S.A. No. 157 of 1990(R) heard and disposed of by the 7th Additional Judicial Commissioner, Ranchi vide the impugned judgment and decree.
8. The learned first appellate court framed the following point for determination in the appeal:-
"Whether it was a tenancy or the suit house was given on Bhugut Bandha Mortgage to the defendant after taking a loan of Rs.4,800/- from him?"
The learned first appellate court considered the ingredients of Usufructuary Mortgage and referring to the recitals of the registered deed of mortgage marked Exhibit-3, considered that as the mortgaged property was a shop room, the defendant was expected to run any shop through the shop and there is stipulation in para-3 of the deed marked Exhibit -3 that the loan amount along with interest shall became liquidated at the end of four years and after that the mortgagee would give vacant possession of the premises and in para-4 of the mortgage deed, it has been agreed to by the parties that if during the period of mortgage, the mortgagee is dispossessed or the property becomes unfit for possession for the fault of the mortgager, the mortgagee shall be entitled to receive the proportionate amount of loan with interest at the rate of 12% per annum together with damages, if any, and came to the conclusion that it was a mortgage and not a tenancy. The first appellate court took note of the fact that the defendant was not paying the monthly rent and after 08.02.1977, the defendant produced money order coupon of one month only for Rs.100/- and dismissed the appeal.
9. At the time of admission of this appeal, vide order dated 13.03.1991, the following substantial question of law was formulated:-
"Whether in view of the fact that subject matter of the suit was 6 S.A. No. 157 of 1990(R) a shop room wherein the appellant was to carry on business, Bhugut Bandha Mortgage could have been created in relation thereto?"
10. Mr. Prashant Pallav, the learned counsel appearing for the appellants submits that the judgment and decree passed by both the courts below are against the weight of the evidence in the record. It is further submitted that both the courts below have committed an error of law by holding that the registered deed of Bhugut Bandha Mortgage, marked Ext -3 was a usufructuary mortgage as defined under Section 58(d) of the Transfer of Property Act and it is submitted that Bhugut Bandha Mortgage is a special type of mortgage recognized only under the first proviso of Section 46 of the Chota Nagpur Tenancy Act in respect of a Raiyat of an agruciltural land and such a mortgage could not have been done in respect of a shop property. Hence, it is submitted that the impugned judgment and decree by both the courts below be set aside and the suit of the plaintiff be dismissed.
11. Mr. Srijit Choudhary, the learned counsel for the respondent on the other hand defended the impugned judgment and decree and submitted that import and the meaning of a document is to be arrived at from its recital and not from its title and as the recital of Exhibit -3 is that of the ingredients of usufructuary mortgage, hence rightly it has been held by both the courts below that the Exhibit -3 is a deed of usufructuary mortgage. It is further submitted by Mr. Choudhary that Section 3(ii) of the Chota Nagpur Tenancy Act, 1908 defines Bhugut Bandha Mortgage which reads as under:-
3. Definitions -
(ii) "bhugut bandha mortgage" means a transfer of the interest of tenant in his tenancy; for the purpose of securing the payment of money advanced or to be advanced by way of loan; upon the condition that the loan, 7 S.A. No. 157 of 1990(R) with all interest thereon, shall be deemed to be extinguished by the profits arising from the tenancy during the period of the mortgage;
But when there is no reference in the Exhibit -3 to the provisions of the Chota Nagpur Tenancy Act, 1908, the mere nomenclature of Exhibit -3 as a deed of mortgage by Bhugut Bandha, when the word Bhugut Bandha certainly can be said to be used for usufructuary mortgage, which has all the trappings of a usufructuary mortgage, cannot be found fault with so much so to set and naught the entire deed of usufructuary mortgage itself. It is next submitted that both the courts below having rightly arrived at the concurrent finding of fact that Exhibit -3 was a usufructuary mortgage between the plaintiff and the defendant and as even there is no bar of the said Bhugut Bandha Mortgage to be used as a substitute for usufructuary mortgage as defined under Section 58(d) of the Transfer of Property Act. Hence, it is submitted that this appeal being without any merit be dismissed.
12. Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that the words "to receive the rent and profits accruing from the property" appearing in section 58 (d) of the Transfer of Properties Act, means not only agricultural land but that may be from house property also. The Hon'ble Supreme Court of India in the case of Tara Chand Vs. Sagarbai @ Chaiyalibai, reported in AIR 2007 SC 2059 dealt with a case where usufructuary mortgage was made in respect of a house property.
13. Bhugut Bandha Mortgage is basically a Usufructuary Mortgage which has been defined under Section 58(d) of the Transfer of Property Act, 1882 which reads as under:-
58. "Mortgage", "mortgagor", "mortgagee", "mortgage-money" and 8 S.A. No. 157 of 1990(R) "mortgage-deed" defined.--
(a) ....
(b) ....
(c) ....
(d). Usufructuary mortgage.--Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession 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 characteristics of a usufructuary mortgage are:-
(i) That the possession of the mortgaged property is delivered or agreed to be delivered to mortgagee,
(ii) That the mortgagee is to appropriate the rents and profits in lieu of interests or of principal or of both,
(iii) The mortgager does not incur any personal liability to repay the money;
(iv) That there being no personal liability to pay, there is no forfeiture and therefore the remedy is by way of sale or forfeiture or sale is not open to the mortgage.
It is a settled principle of law that the import and meaning of registered deed is to be gathered from the entire and not by its nomenclature. The name given at the commencement of the document is not the controlling factor, it is the substance of the document and not the form which is to be considered. It is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, 9 S.A. No. 157 of 1990(R) it is the former that should be adopted on the principle expressed in the maxim ut res magis valeat quam pereat. Nomenclature of a document or deed is not conclusive of what it seeks to achieve; the court has to consider all parts of it , and arrive at a finding in regard to its true effect. The Hon'ble Supreme Court of India in the case of Provash Chandra Dalui v. Biswanath Banerjee, 1989 Supp (1) SCC 487 observed as under
in paragraph 10 which reads as under:
"10. 'Ex praecedentibus et consequentibus optima fit interpretatio.' The best interpretation is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected 'ex antecedentibus et consequentibus;' every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible. As Lord Davey said in N.E. Railway Co. v. Hastings: "... the deed must be read as a whole in order to ascertain the true meaning of its several clauses, and... the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible...."
In construing a contract the court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the court can do about it. In the construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject-matter to which it was designed and intended they should apply.
14. In view of this principle of law, even though the nomenclature of the deed has been mentioned as registered mortgage by Bhugut Bandha still since it has all the trappings of the usufructuary mortgage, this Court is of the considered view that there is no illegality in the interpretation of Exhibit -3 as deed of usufructuary mortgage by the courts below. The sole substantial question of law is answered accordingly.
15. In view of the discussions made above, this appeal being 10 S.A. No. 157 of 1990(R) without any merit is dismissed on contest, but under the circumstances without any costs.
16. Let a copy of this Judgment along with Lower Court Records be sent back to the learned court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 27th September, 2022 AFR/ Sonu-Gunjan/-