Patna High Court
Mt. Parbati Devi vs Hira Sah And Anr. on 4 May, 1984
Equivalent citations: AIR1986PAT149, AIR 1986 PATNA 149, (1985) PAT LJR 585 (1985) BLJ 157, (1985) BLJ 157
JUDGMENT A.K. Sinha, J.
1. This is a plaintiff's appeal against the judgment of reversal.
2. The plaintiff brought a suit for realisation of Rs. 2,000/- as principal and Rs. 1,255/-by way of interest on the basis of a simple mortgage bond dt. 27-10-67. The plaintiff also claimed interest pendente lite and in futuro till realisation.
3. In short, the plaintiff's case was that she was a registered money lender and she had transactions with the defendants and according to the plaintiff one Ramchandra Sah was the Karta of the joint family consisting of his sons and daughters (defendants 1 to 4). Ramchandra Sah as Karta of his family took the loan of Rs. 2,000/- on interest at the rate of 12 annas per cent per month and he, in token of which, executed a mortgage deed of the house (scheduled 1 property in favour of the plaintiff).
4. Plaintiffs further case was that Ramchandra Sah subsequently on 4-11-1968 again mortgaged the very house in question in favour of defendant 5 (Hira Sah) and hence plaintiff impleaded Hira Sah also. According to the plaintiff, as the defendants were not inclined to repay the money in spite of demands, it necessitated the filing of the suit.
5. In the category of the defendants it were only defendants 1 and 5 who entered appearance and filed written statement separately. The case of defendant 1, in short was that he and his father were never the members of the Hindu joint family nor was his father the karta rather he had gone mad since 7 or 8 months before his death and as such he was not capable of judging" the right things. According to defendant 1 his father never borrowed any loan as karta of the family. According to him the plaintiff had only agreed to advance loan and she obtained the left thumb impressions over a blank hand note and the suit was filed after forging the same. Further case was that his father had paid the interest of the money lent in kind but the plaintiff never granted any receipt. Later on his father again mortgaged the house to defendant 5 in which the mortgaged money of the plaintiff was kept in amanat and the mortgagee took the responsibility to pay off the debt and hence defendant No. 1 could not be held responsible for the money lent. Defendant 5 also contested the suit. The defence of defendant 5 was that the suit was not maintainable and also that the claim was time barred. The defence was that under the amended Bihar Money Lenders Act, 1975 the suit was not maintainable in view of Section 7(5) of the Money Lenders Act. Further defence was that the plaintiff was not a money lender nor she maintained any account or registers as required under the law. Another important defence was that he was a scheduled debtor within the meaning of Section 2(b) of the Bihar Debt Relief Act, 1976 (hereinafter referred to as the Relief Act) and in that view of the matter the plaintiff's claim was not maintainable.
6. The trial court decreed the suit. It held that Section 7(5) of the amended Bihar Money Lenders Act was not retrospective and in that view of the matter the suit could not fail on that ground. Thus the trial court decided this point against the defendants. It further held, on a consideration of the evidences on the record, that the plaintiff's claim was genuine and she was entitled to recovery and realisation of the amount from the defendants i.e. the principal amount from defendant 5 and the interest from defendant 1. It further held that defendant 5 was not a scheduled debtor and hence the suit did not abate under Section 3(b) or (c) of the Relief Act.
7. Thereafter defendant No. 5 alone preferred the appeal. Defendant 1 on the other hand (who is respondent No. 2 in the instant appeal) also filed a cross appeal. The court of appeal below allowed the defendant's appeal (preferred by defendant 5) and set aside the judgment and decree of the trial court. The cross appeal of defendant 1 was dismissed for non-compliance of order for payment of court-fees. The court of appeal below held that the mortgage deeds (Exts. 1 and A) were genuine, valid and for valuable consideration. It further held that the loan having been advanced in 1967 and 1968 and the cause of action as well having arisen before the amended Money Lenders Act, the suit was not barred under Section 7(5) of the amended Bihar Money Lenders Act. It held that the provisions of Section 7(5) of the Money Lenders Act was only prospective having come into force on 20-3-75.
8. These findings were in favour of the plaintiff but the court of appeal below held that defendant 1 (who was respondent 2 in the court of appeal below) and defendant 5 (appellant in the court of appeal below) fell in the category of "small farmers" or "marginal farmer" and the plaintiff had failed to prove that they did not come in that category. Having held as such, the court of appeal below held that the suit was barred under Section 3 of the Bihar Debt Relief Act and no decree for recovery of principal or interest amount for the loan (vide Exts. 1 and A) could be passed against defendants Nos. 1 and 5.
9. Thus on this point the court of appeal below upset the finding of the trial court and non-suited the plaintiff on this ground alone.
10. Learned counsel for the plaintiff-appellant has contended that as Rs. 2,000/-was kept in the amanat by the subsequent mortgagee to pay the same to the plaintiff, the provisions of the Act were not applicable in the instant case. The second submission advanced by the learned counsel for the appellant was that before the defendant is declared a "small farmer" or a "marginal farmer" he must show that he was a farmer and if this was not proved by the defendant the defendant could not be declared a "small farmer".
11. A perusal of the two judgments i.e. the judgments of the court of appeal below and that of the trial court shows that defendant 5 who had preferred the appeal in the court of appeal below had pleaded that he was a "scheduled debtor". The trial court held as already stated above, that he was not. The court of appeal below, on a consideration of the evidence adduced by both the parties, held that the defendant was a "small farmer"/ "marginal farmer".
12. Clause (c) of Section 3(1) of the Act lays down that notwithstanding anything contained in any other law, every debt incurred by a scheduled debtor before the commencement of this Act shall be deemed to have been wholly discharged and a suit for recovery of such debt would abate.
13. The terms "scheduled debtor", "small farmer" and "marginal farmer" have been defined respectively in Section 2(b)(c) and (d) of the Act. "Scheduled debtor" means a person who is a small farmer or a "marginal farmer" or a rural artisan, or an agricultural labourer, who is ordinarily resident in the State of Bihar.
14. "Small fanner" means a farmer who owns land measuring not more than two acres of irrigated land, four acres of imirrigated land and "marginal farmer" means a fanner who owns land measuring not more than one acre of irrigated land or two acres of unirrigated land.
15. According to the plaintiff, defendant No. 5 owned 4 or 5 bighas of land besides holding a shop business; whereas, according to defendant 5 he was a scheduled debtor having one and half kathas of land only. He was a labourer and that was the only source of income from which he maintains his family and hence according to defendant 5 he fell within the definition of "scheduled debtor" and in that view of the matter the suit abated under Section 3(b)(c) of the Act. The court of appeal below has discussed in great detail the evidence adduced by the plaintiff as well as the contesting defendants and on a detailed consideration of the same came to the finding that defendant 5 fell in the category of small farmer/marginal farmer and further held that the plaintiff had failed to prove that defendant 5 owned 4 or 5 bighas of land.
16. Learned counsel for the plaintiff-appellant tried to persuade me to accept his submission to the effect that this finding of the court of appeal below should be taken to be no finding in accordance with law. Learned counsel for the appellant has taken me through the judgment of the trial court as well as the judgment of the court of appeal below in detail. I am satisfied that the court of appeal below, while reversing the judgment and decree of the trial court, has made honest endeavour to deal with the evidences on the record and has given a proper appraisal of the same. It is not a case where any material evidence has been left to be considered by the court of appeal below. I hold that the finding is neither perverse nor unreasonable.
17. The submission of the learned counsel for the appellant mat as Rs. 2,000/- was kept in amanat by the subsequent mortgagee to pay the amount to the plaintiff it was not a debt, is without any substance. By the mortgage deed dt. 4-11-68 defendant No. 5 had taken upon himself to pay back Rs. 2,000/- to the plaintiff. In that view of me matter, it cannot be said that it was not a debt. As final court of fact has held that defendant No. 5 was a "small farmer/marginal farmer"; in other words "scheduled debtor" (which means a small farmer or a marginal farmer), this finding cannot be upset in the second appeal; more so, when this finding was arrived at by the final court of fact on a very proper appraisal of the evidences adduced by the parties.
18. Thus the first submission advanced by the learned counsel for the appellant fails.
19. There is no force in the second submission as well advanced by the learned counsel for the appellant. The word "farmer" has not been defined. For a suit to abate what is required is that one should be a "scheduled debtor" which included "small farmer" and "marginal farmer". Hence second submission advanced by the learned counsel for the appellant is totally misconceived one. For taking advantage of Clause (c) of Section 3(1) of the Act, one need prove only that he is a 'small farmer' or 'marginal farmer'. If he is a 'small farmer' or a 'marginal farmer' as defined under Clauses (c) and (d) of Section 2 of the Act, one is entitled to plead abatement under Clause (c) of Section 3(1) as he becomes a 'scheduled debtor' and though it will bear repetition, the final court of fact has already accepted the case of defendant 5 and negatived the case of the plaintiff. Thus I hold that the court of appeal below took a very correct view of law in holding that the suit was not maintainable under Clause (b) of Section 3(1) of the Act and there is no illegality or perversity in this finding.
20. In the result this appeal fails and is dismissed.
21. As nobody has appeared for the respondents, there will be no order as to costs.