Patna High Court
Bhuneshwar Prasad Sharma vs Smt. Suryamukhi Devi And Ors. on 30 January, 1987
Equivalent citations: 1989(37)BLJR214
Author: L.M. Sharma
Bench: L.M. Sharma
JUDGMENT S.S. Sandhawalia, C.J.
1. The somewhat ticklish question which comes to the fore in this reference to the Full Bench is-whether a term of personal covenant to pay the mortgage amount in a deed of usufructuary mortgage would convert it into an anomalous one for the purpose of Section 12 of the Bihar Money Landers Act, 1974 ? Equally at issue is a somewhat veiled doubt of a conflict betwixt Division Bench judgments in 1982 PLJR 446 (Hari Narain Singh v. The State of Bihar and Ors.) and 1985 BBCJ 119 (Kapildeo Nairain Sigh v. Deputy Collector, Land Reforms).
2. The facts giving rise to the issue aforesaid are in termingled in the some what parallel proceedings betwixt the parties in the Civil Court and before the authorities under the Money Lenders Act. Since admittedly with regard to the proceedings in the Civil Courts. First Appeal No. 201 of 1983 is pending in this High Court against the judgment and decree dated the 29th of January, 1983, and the matter is subjudice, it is both apt and necessary to separate that the aspect and reference to the same becomes somewhat unnecessary.
3. On the 16th of November, 1967, respondent No. 1, Smt. Suryamukhi Devi executed two registered deeds in favour of the petitioner with respect to an area of 2 bighas 7 dhurs appertaining to village Saundhini, district Siwan, whereby the agricultural land belonging to respondent No. 1 was hypothecated to the petitioner for a sum of Rs. 8,000 and the express term of this deed was that the petitioner would continue in possession of this land for three years and will remain in possession till" the satisfaction of the said mortgage amount. It was also agreed that the petitioner would be entitled to realise one per cent, per month as interest in case of dispossession.
4. On the 20th of March, 1975, the Bihar Money Lenders Act, 1974 (hereinafter called 'the Act') was enforced including Section 12 thereof providing for the statutory redemption of usufructuary mortgages after seven years. The writ petitioner attempts to take the stand that the said mortgages were not usufructuary but were anomalous mortgages to which Section 12 would not be applicable. It is the petitioner's case that later one Mahadanama dated the 12th of August, 1931 (Annexure-2) was executed in favour of the petitioner by respondent No. 1 and in part performance thereof she put the petitioner in possession of the land as purchaser thereof. However, respondent No. 1 allegedly declined to execute the sale deed and the petitioner was compelled to file Title Suit No. 39 of 1982 in the Court of the Subordinate Judge First, Chapra, for the specific performance of the contract and as already noticed, further reference to these proceedings is unnecessary because of the pendency of First Appeal No. 201 of 1983.
5. In the meantime, respondent No. 1 preferred an application under Section 12 of the Act before the Anchal Adhikari, Bhagwanpur, for the redemption of the usufructuary mortgage. The writ petitioner appeared and objected to the proceedings on various grounds including, inter alia, that there was no usufructuary mortgage subsisting for redemption and also that the proceedings were barred by limitation under Article 137 read with Section 29 of the Limitation Act. The Anchal Adhikari by his order dated the 20th of April, 1982, rejected the objections of the petitioner and allowed the application of respondent No. 1. On appeal the Land Reforms Deputy Collector on the 15th of June, 1983 rejected the same and a further revision before the collector was also rejected on the 9th of April, 1983. A further application to the Commissioner, respondent No. 5, was preferred which was also rejected vide order Annexure 4-C, dated the 1st of October, 1985. The petitioner still claiming to be in possession of the lands concerned thereafter, has. preferred the present writ petition challenging the aforesaid orders of the authorities concerned.
6. In the caveat petition filed on behalf of respondent No. 1, material facts averred on behalf of the writ petitioner are sought to be controverted. It has been specifically averred that the alleged suit for specific performance of the contract is rested on a forged, fraudulent and fabricated agreement purported to have been executed by the caveator.
7. This writ petition came up for admission before the Division Bench on the 3rd of March, 1986. Learned counsel for the parties relied on the decisions reported in 1982 PLJR 446 (supra) and 1985 BBCJ 119 (supra) and apparently sensing some conflict of judicial precedent, the matter was referred to a larger Bench and that is how it is before us,
8. Now the core of the submission on behalf of the petitioner is that the mortgage deeds included an express term of a personal covenant to pay the mortgage amount in the event of dispossession and, therefore, these would fall out of the definition of usufructuary mortgages and come in the ambit only of an anomalous mortgage. Basic reliance is placed on the definition in Section 58 of the Transfer of Property Act, 1882. It was sought to be contended that the provisions of the aforesaid section would be equally attracted in the context of Section 12 of the Bihar Money Lenders Act.
9. In the light of the aforesaid contention it is plain that the threshold question, therefore, is whether the definition in the Transfer of Property Act is applicable in its strictitude to Section 12 of the Act as well. The issue deserves to be examined on the anvil of both the aspects. Assuming entirely for argument sake that Section 58 of the T.P. Act would be applicable, the issue may be first examined both on principle and precedent.
10. For case of reference, the relevant part of Section 12 of the Act and Section 58 of the T.P. Act may first be read :
12. Usufructuary mortgages and their redemption.-Notwithstanding anything to the contrary contained in any law or anything having the force of law or in any agreement, the principal amount and all dues in respect of an usufructuary mortgage relating to any agricultural land, whether executed before or after the commencement of this Act, shall be deemed to have been fully satisfied and the mortgage shall be deemed to have been wholly redeemed on expiry of a period of seven years from the date of the execution of the mortgage bond in respect of such land and the mortgagor shall be entitled to recover possession of the mortgaged land in the manner prescribed under the rules :
"58. 'Mortgage', 'mortgagor', 'mortgagee', 'Mortgage-money' and 'mortgage-deed' defined.-(a) A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
* * * * * The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.
* * * * * Usufructuary mortgage .-(A) Where the mortgagor delivers possession or expressly 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, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.
* * * * * Anomalous mortgage.-(g) A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage, or a mortgage by a deposit of title-deeds within the meaning of this section is called an anomalous mortgage.
* * * * *
11. Now analysing somewhat closely the aforequoted definition of 'usufructuary mortgage', it seems manifest from the plain language thereof that the core of a usufructuary mortgage is the delivery of possession of the mortgage property, an authorisation to the mortgagee to retain such possession until payment of the mortgage money and the right of the enjoyment of the usufruct of such property. These three requirements lie at the heart of an usufructuary mortgage and not only this is so from the words of the statute but is otherwise broadly so from the import of the common parlance of the term. Since there is hardly any controversy on the point, it would be wasteful to multiply precedent thereon. Once the hard core or the corner-stone of an usufructuary morgage has thus been noticed, the whole question is whether the mere addition of a term of a personal covenant to pay in case of dispossession would render an otherwise usufructuary mortgage as an anomalous one under the Transfer of Property Act? I do not think so. The mere addition or inclusion of such a term would not in essence change the essential character of the mortgage which would continue to remain an usufructuary one. Neither principle nor authority warrants the proposition that such incidental addition to the basic requirement of an usufructuary mortgage would convert it into an anomalous one.
12. Apart from principle, it appears to me that the binding authoritative precedent in AIR 1929 PC 139 (Lal Narsingh Partab Bahadur Singh v. Mohammad Yaqub Khan and Ors.) would also clearly hold to the same effect. Therein the trial court had held the mortgage in question as an usufructuary mortgage and granted a sale decree under Section 68 of the Transfer of Property Act. However, on appeal the Chief Court of Oudh reversed the view and held that the mortgage in question was an anomalous one and, therefore, Section 68 of the Transfer of Property Act was excluded and Section 98 thereof was applicable. Reversing the appellate court and holding that some combination of the characteristics of an usufructuary mortgage with a simple mortgage would not alter the essential character of the mortgage and would not take it out of the ambit of an usufructuary mortgage and convert it into an anomalous one, their Lordships restored the judgment of the trial court and observed as under :
In their Lordships' opinion the mortgage is a combination of a simple mortgage and an usufructuary mortgage. The only! clause in the mortgage which presents any difficulty is Clause 4, but that clause appears in their Lordships' view at most only to enable the mortgagors to act as manager without in any way detracting from the effect of Clause 2, which entitled the mortgagee to possession. On this view of the construction of the mortgage deed Section 98 of the Act has no application to the case.
Now Clause 4 of the deed which presented the main difficulty was noticed in their own words as under :
The fourth clause of the mortgage contained a further provision that the mortgagors should remain entitled to eject tenants, to en-hence rent, to cultivate land and to issue lease and after enhancement and payment of interest if there be left any surplus or if the mortgagors pay any year or each year any amount of money then that money should be deemed to have been paid towards the principal and interest on the money paid should be deducted and that the mortgagee like the mortgagors, should possess all the remaining powers during the period of his possession. . . .
Depite the addition of the aforesaid terms it was held that even the plain combination of a simple mortgage and a usufructuary mortgage as defined in Section 58 of the Transfer of Property Act would not convert it into the residuary anomalous mortgage as described in Clause (g) of the said section.
13. From' the basic ratio of the aforesaid judgment it necessarily follows that the mere inclusion or addition of a term of personal covenant to pay in case of dispossession would not convert an otherwise usufructuary mortgage into anomalous one. It may, perhaps, be noticed that as a matter of practice such a covenant is not unusually incorporated in usufructuary mortgages and is indeed no more than a recital of the law itself that in the case of such a mortgage in the event of the dispossession of the mortgagee the liability to personally pay the mortgage amount continues and co-exists. In no sense can it be said that a covenant of this nature would structurally and radically change the essential character of a mortgage if it is otherwise usufructuary. Such a view further stands buttressed by the decision in AIR 1942 Calcutta 522 (Sashi Bhusan Misra-and Ors. v. Madhu Sudan Mondal) and (Shibnarain Mandar and Anr. v. Ramautar Singh and Ors.). '
14. To conclude on this aspect it must be held both on principle and precedent that the mere insertion of a term of a personal covenant to pay the mortgage amount in an otherwise usufructuary mortgage deed, would not convert it into an anomalous mortgage even for the purposes of the Transfer of Property Act.
15. Adverting now to the two judgments of this Court relied upon by the learned counsel for the petitioner, it is somewhat plain that the brief one in AIR 1980 Patna 152 (Kamal Nay an Prasad Sinha and Ors. v. Ram Nayan Prasad Sinha and Ors.) is clearly distinguishable. Therein on a construction of the terms of the mortgage deed it was held on facts that the same did not contain a covenant to repay. Consequently there is not, and possibly could not be, any ratio as to the result of the addition of a personal covenant to pay to a basically usufructuary mortgage. Similarly, in AIR 1941 Patna 486 (Jamuna Singh and Ors. v. Sheonandan Singh and Anr.) the Division Bench clearly came to the conclusion that there was no promise by the mortgagor to repay the amount. Both the cases thus do not in any way advance the stand of the petitioner.
16. However, in AIR 1940 Calcutta 426 (Khoaj Jamadar v. Abdul Sobhan Khan Jalkadar Khan) the Division Bench took the view that since the deed gave to the mortgagee not only the rights of usufructuary mortgagee but those of the simple mortgagee as well, it could be fairly construed to be a mixed or anomalous mortgage. Similarly in AIR 1950 Assam 107 (Dharameshwar Sarma y. Lokhyadhar Borgohin) it was observed that the mortgage is a combination of a usufructuary and a simple mortgage and as such could only be described as anomalous. There is no gain saying the fact that these cases in a way raise a vacillating doubt that the addition of some terms of a simple mortgage to a usufructuary one would render it as anomalous, and by way of analogy a personal covenant to repay would tend to the same result.
17. Now assuming entirely in the petitioner's favour (only for the sake of argument without holding so) that a term of a personal covenant to pay may render the mortgage as an anomalous one under the Transfer of Property Act, still would it necessarily be so for the purposes of Section 12 of the Bihar Money Lenders Act ? To put it in other words, has the phrase "usufructuary mortgage" employed in Section 12 of the said Act to be given an identical meaning as defined under Section 58(d) of the Transfer of Property Act. Undoubtedly the issue is not entirely free from difficulty as two competing canons of construction may come into play. Nevertheless the necessary adjudicatory choice has to be made.
18. The interpretative exercise herein inevitably first leads to the history and purpose of the statute. Way back in 1937, in order to ensure relief to the poor agriculturist debtors, the Bihar Money Lenders Act, 1938 was placed on the statute book. However, its provision got bogged down in a contention challenge to its validity and in AIR 1939 Patna 55 (Sadanand Jha v. Aman Khan and Ors.) Section 41 of the Act was struck down as ultra vires the Ursury Law Repeal Act. Contract Act and Usurious Loans Act. That view was concurred in by later judgments and the Legislature attempted to cut the Gordian knot by enacting the Bihar Money Lenders (Regulation of Transactions) Act, 1939. The provisions of both the statutes, however, remained the subject-matter of controversy which was carried to the Federal Court and the Privy Council. It is no longer necessary to now advert to them, and suffice it to mention that the present Act was enforced in March 1975 and by virtue of Section 48 thereof the Bihar Money Lenders Act, 1938 and the Bihar Money Lenders (Regulation of Transacions) Act, 1939 have been repealed.
19. The larger purpose of the present Act is not in doubt. It is incorporated in the preamble of the Act itself, namely, to grant relief to debtors in the State of Bihar. Plainly enough it is a beneficent statute intended for what is sometimes picturesquely called as socio-economic engineering. The provisions of such a beneficent statute have necessary to be given a liberal and meaningful construction. In particular, Section 12 of the Act is one of the core sections directed to that end. It is plainly intended to free the ignorant and somewhat innocent and oppressed agriculturists from the clutches of wily and atrocious money lenders. This section, therefore, has to be read in the light of that larger purpose and in the designed absence of any specific definition of an usufructuary mortgage in the Act itself.
20. In well-matched constructions the tilting factor is, perhaps, the question of a true approach to the interpretation of a statute of the nature aforesaid. Way back in (Darshan Singh Balwant Singh and Anr. v. The Stale of Punjab) it was observed authoritatively by the Constitution Bench as under :
. . . . It is a cardinal rule of interpretation that the language used by the Legislature is the true depository of the legislative intent, and that words and phrases occurring in a statute are to be taken not in an isolated or detached manner dissociated from the context but are to be read together and construed in the light of the purpose and object of the Act itself.
The view aforesaid has been followed and reierated and indeed enhanced over the years and has been put in more colourful phraseology by Krishna Iyer, J. speaking for the Bench, in (The Authorised Officer, Thanjavur and Anr. v. S. Naganatlia Ayyar, etc) in the following words :
. . . . The judiciary, in its sphere, shares the revolutionary purpose of the Constitutional order, and when called upon to decode social legislation must be animated by a goal-oriented approach. This is part of the dynamics of statutory interpretation . , . ..
It is in the light of the aforesaid authoritative guideline that an approach to the interpretation of the Act and Section 12 in particular, is to be made.
21. What perhaps deserves highlighting is the fact that the Act though has an exhaustive definition, Section 2 in itself including as many as Clauses (a) to (r) with their further sub-clauses, yet the Legislature has not chosen to define an 'usufructuary mortgage' therein, nor has it added by a referential incorporation the definition of any other statute or of the Transfer of Property Act for such a purpose. In the specific Section 12 the framers whilst employing the words 'usufructuary mortgage' have not chosen to define the same. Yet again Section 12 appertains not to usufructuary mortgages generally but only to such mortgages relating to any agricultural land. Even when so employed with particular reference to agricultural land, the section of the statute does not give a hint of its precise definition. Would it, therefore, be permissible to import the strict and technical definition of Section 58 of the Transfer of Property Act in Section 12 of the Act when its framers advisedly did not do so either by expressly defining it in Section 2 or by incorporating it by a reference to the Transfer of Property Act. Indeed the stand of the learned counsel for the petitioner that the meaning of the phrase 'usufructuary mortgage' was well-known nearly a century earlier under the Transfer of Property Act, cuts both ways. If the Legislature had intended to incorporate that definition of the 'usufructuary mortgage' in this Act itself, then it could have done so by repeating it in Section 2 of the Act or declaring that it would have the same meaning as under the Transfer of Property Act. Neither having been done, the counsel for the respondent State seemed to be on firm ground that the definition under the Transfer of Property Act cannot be brought in through the back door of an interpretative implication and in face of the designed absence of a definition either directly or by referential incorporation.
22. It is m the light of the above that another cardinal rule of interpretation was rightly and strongly invoked by Mr. Sachchidanand Jha for the respondent State. He pointed out and, in my view, rightly that it is impermissible in interpreting a statute to go to the definition given by an altogether different statute by a different Legislature. The Transfer of Property Act is a Central Act enacted by the Central Legislature; the Money Lenders Act has come in much later and has been enacted by the Bihar Legislature. It is unnecessary to labour the point because way back in AIR 1929 PC 181 (Laurence Arthur Adamson and Ors. v. Melbourne and Metropolitan Board of Works) their Lordships observed as follows :
Moreover, their Lordships would observe that it is always unsatisfactory and generally unsafe to seek the meaning of words used in an Act of Parliament in the definition clauses of other statutes dealing with matters more or less cognate, even when enacted by the same Legislature. A fortiori must it be so when resort is had, as in the Swinburne's case (1020) 27 CLR 377, for this purpose to the enactments of other legislatures.
This view was reiterated by the Division Bench in AIR 1949 Nagpur 34 (Jainarayan Ramkisan v. Motiram Gangaram) and other innumerable decisions to which reference is unnecessary.
23. In fairness one must notice the somewhat tenuous attempt of the learned counsel for the petitioner to fall back upon the rule that when the Legislature employs a term used earlier then it is presumed to know its precise meaning and intends to give the same effect. It was submitted that the Transfer of Property Act, 1882 was enacted nearly a century earlier and the definition of 'usufructuary mortgage' therein should be deemed to be incorporated in the Act itself. Counsel advocated the somewhat doctrinaire stand that the words of Section 58(d) of the Transfer of Property Act must be deemed to be written in pen and ink into the Bihar Money Lenders Act as well.
24. I find myself wholly unable to subscribe to the somewhat technical and, as already observed, the doctrinaire contention of the learned counsel for the petitioner. The larger purpose and the import of the Transfer of Property Act is entirely different and divorced from that in the subsequent Bihar Money Lenders Act, as has been already highlighted. The two statutes are the products of different Legislatures driving to different ends and purposes. I am clearly of the view that if a choice is to be made on the two norms of interpretation, it must fall on the larger one that it is unsatisfactory and unsafe to seek the meaning of words or phrases used in an Act in the definition clauses of an altogether different statute even by the same Legislature and much more so if it is by different Legislatures, and particularly when such statutes are not on cognate matters. As already noticed, the tilt herein must be towards the larger purposes of the Act and if a constrictive or legalistic definition is likely to defeat those purposes, the same has necessarily to be avoided. It seems difficult to imagine that the Legislature when intending to give such liberal relief to agriculturist debtors, would wish to deny the same on the ground that a term of personal covenant had been incorporated in a deed which was otherwise plainly one of a usufructuary mortgage. Consequently I would hold that in Section 12 the meaning given to the 'usufructuary mortgage' must be its larger dictionary and common parlance meaning consistent with the purpose and policy of Section 12 and not the hide bound definition of Section 58(d) in the Transfer of Property Act. When a choice, even if difficult, has to be made then it should rather be in consonance with the advancement of the larger object and purpose of the statute and not inhibited by any legalistic grammarism.
25. To conclude on this aspect, it must be held that the definition of a 'usufructuary mortgage' in Section 58 (d) of the Transfer of Property Act is not applicable in strictitude to Section 12 of the Bihar Money Lenders Act. Consequently, the answer to the question posed at the outset is rendered in the negative and it is held that a term of personal covenant to pay the mortgage amount in a deed of usufructuary mortgage would not convert it into an anomalous one for the purposes of Section 12 of the said Act.
26. Repelled on the main grounds, learned counsel for the petitioner attempted to fall back on the alleged bar of limitation. Relying on Article 137 of the Limitation Act, 1983, it was submitted that the application under Section 12 of the Act would be barred either after three years from the date of the enforcement of the Act or in any case on the deemed redemption of the mortgage after seven years of its execution.
27. The aforesaid submission, which even when pointedly asked, remained unbuttressed by precedent, has to be rejected in this jurisdiction in view of the Division Bench decision in (Kailash Pali Singh v. The State of Bihar and Ors.). Therein it has been observed as under :
. . .According to me, there is no repugnancy between the two provisions, for, while the Limitation Act extinguishes the right of the mortgagor to redeem and recover possession after expiry of 30 years from the date when the right to redeem or recover possession accrues, Section 12 of the Act extinguishes the right of the mortgagee to remain in possession after expiry of seven years. Section 12 of the Act confers upon the mortgagor a right to recover possession on the expiry of seven years from the date of the execution of the mortgage and in case he does not recover possession within 30 years from that date, his right shall be extinguished under the provisions of the Limitation Act...
28. No serious challenge could be laid to the aforesaid enunciation on behalf of the petitioner and indeed none was attempted at all. Reference in this connection may also be made to the recent Full Bench decision holding that Section 12 can have applicability if the mortgage is subsisting on the date of the application. Similarly 1986 PLJR 1026 (Raghunandan Rai v. The State of Bihar and Ors.) is instructive on the point. This apart, as long as the mortgagee remains in possession, the cause of action under Section 12 continues to accrue to the applicant provided that the usufructuary mortgage continues to subsist. Even if Article 137 has to be applied, the terminus therefor would have to be rested on the subsistence or continuance of the usufructuary mortgage and not earlier.
29. Almost as an argument of desperation, learned counsel for the petitioner attempted to invoke the provisions of Section 53-A of the Transfer of Property Act even in the realm of the writ jurisdiction. This stand is only to be noticed and rejected. Admittedly the petitioner has filed a suit for the specific performance of the alleged contract and the issue of part performance is one which has to be raised and adjudicated in the said suit. As noticed already, the said suit was dismissed on merits though ex parte vide Annexure C, and a first appeal against the same is yet pending. Section 53-A of the Transfer of Property Act has thus relevance to that litigation and is wholly irrelevant to the issues before us in the present writ case.
30. It remains to advert to the alleged conflict betwixt 1982 PLJR 446 (Hari Narain Singh v. The State of Bihar and Ors.) and 1985 BBCJ 119 (Kapildeo Narain Singh v. Deputy Collector, Land Reforms) which indeed has necessitated the reference to the larger Bench. However, a closer analysis of the judgment in Hari Narain Singh's case would clearly disclose that the alleged conflict is more imaginary than real. Therein the Division Bench noticed not one but four different kinds of covenants in the deed which ran counter to the concept of a usufructuary mortgage. It was the conjoint effect of all those covenants which impelled the Bench to hold that they emphasised the anomalous character of the deed and the same be not a usufructuary mortgage. The judgment cannot even remotely be read to lay down that a mere addition of a personal covenant to pay, in an otherwise barely usufructuary mortgage, would radically change its character and render it as an anomalous one. In Kapildeo Narain Singh v. Deputy Collector, Land Reforms, 1985 BBCJ 119, it was held clearly and positively that the personal covenant to pay was mentioned in the sense in which every debtor including a usufructuary mortgagor is liable to discharge his debt and in case of non-payment the usufructuary nature of the transactions would continue and the insertion of such a term would not render the mortgage as an anomalous one. With further particularity it was held as under :
..Assuming in favour of the petitioner that in view of the statement in relation to payment of debt made by mortgagors the resultant transactions were not usufructuary mortgages within the meaning of the Transfer of Property Act, still it is not possible to exclude the application of Section 12 to them. The Money Lenders Act does not state that a 'usufructuary mortgage' shall be given the same meaning as in the Transfer of Property Act nor does it define the expression in any other manner. The meaning of the word 'usufruct' from which the expression 'usufructuary mortgage' has been derived is stated in the Random House Dictionary thus : The right of enjoying all the advantage derivable from the use of something which belong to another, as far as is compatible with the substance of the thing not being destroyed or injured. The Shorter Oxford English Dictionary also has given a similar meaning. The question arises as to in which sense the Money Lenders Act has used the expression in Section 12. By enacting the section, the legislature has assumed that a creditor in possession of a mortgaged property repays himself the loan along with interest calculated on a reasonable rate by remaining in possession for seven years, and it is therefore, unjust and inequitable to deprive the debtor the possession of the mortgaged property after this period...
For the detailed reasons given earlier, I would agree and affirm the above-quoted view.
31. In the wake of the foregoing discussions it must be held that the mere insertion of a personal covenant to pay the mortgage amount in the event of dispossession would not render the otherwise plainly usufructuary mortgage deeds herein as anomalous ones. The sweep of Section 12 of the Act would, therefore, include the said mortgages within its fold. The basic stand of the petitioner and the ancillary submissions are, therefore, rejected for the reasons detailed above. The writ petition fails and is hereby dismissed. The parties are, however, left to bear their own costs.
Lalit Mohan Sharma, J.
32. I agree with the conclusion arrived at by Hon'ble Chief Justice in paragraph 25 of his judgment for the reasons given in paragraphs 17 to 24 and 30 and those indicated by me in ?the judgment in Kapildeo Narain Singh v. Deputy Collector Land Reforms, 1985 BBCJ 119. I also agree that there is no merit in the pleas of limitation and part performance of an alleged contract; and the writ application, therefore, should be dismissed. I, however, propose to add a few words.
33. The mortgages in which the debtors deliver possession of the mortgaged properties to the creditors for the purpose of securing payment of the loans can be divided into three categories, namely,
(i) transactions which are strictly usufructuary mortgages within the meaning of Section 58(d) of the T.P. Act;
(ii) transactions in which the credilots enjoy some additional right besides those in such mortgages; and
(iii) such transactions in which the creditors are saddled with additional burden to the advantage or the debtors.
There cannot be any dispute that usufructuary mortgages strictly within the meaning of the T.P. Act are subject to the provisions of Section 12 of the Bihar Money Lenders Act. The second category of mortgages, which may not be technically usufructuary mortgages within the T.P. Act and for that reason may be called anomalous mortgages, as directed by Clause (g) of Section 58, also must be held to be within the sweep of Section 12. If the Section is not so interpreted, it may be rendered ultra vires on the ground of illegal discrimination, as pointed out by me in paragraph 11 of the judgment in Kapildeo Narain Singh's case (supra). An additional right in favour of the creditor included in such a mortgage cannot be accepted as an intelligible differential for the purpose of distinguishing it from a usufructuary mortgage strictly within the Transfer of Property Act and cannot justify the denial to the debtor of the advantage of the beneficial legislation. All such transactions, therefore, must be held to be covered by Section 12. The position of the third category is, however, different. A mortgage where the creditor is saddled with additional burden of substantial nature, can be rationally put under a separate class.
34. The assumption made (by necessary implication) by the legislature in enacting Section 12 of the Money Lenders Act is that by enjoying the usufruct of the mortgaged land for a period of seven years a creditor in possession must be deemed to have fully paid himself so as to wipe out the debt. If an additional burden, over and above the loan, falls on the creditor, the position may be substantially changed, and such transactions may have to be considered in the light of the special facts in each case. It is difficult to lay down a universal rule applicable to all such transactions. The case of Hari Narain Singh, 1982 PLJR 446 belongs to the third category and in view of the terms of the document, the mortgage was considered to be non-usufructuary. If the position is analysed in the light of what I have said above, it will appear that there is no conflict between Hari Narain Singh's case and Kapildeo Narain Singh's case.
Ramchandra Prasad Sinha, J.
35. I agree.