Patna High Court
Jang Bahadur Singh vs Baidyanath Prasad And Ors. Etc. on 20 September, 1984
Equivalent citations: AIR1985PAT190, 1985(33)BLJR30, AIR 1985 PATNA 190, (1985) PAT LJR 96, 1985 BBCJ 214, (1985) BLJ 116, 1985 BLJR 30
JUDGMENT Harilal Agrawal, J.
1. Both these cases have been heard together as common questions of fact and law arise in them and they are being disposed of herewith. The petitioner in both the cases is the same and the question arising therein is as to whether an anomalous mortgage in which delivery of possession of the mortgaged property has been given to the mortgagee but with a personal covenant of re-payment of the mortgage money, can be covered under Section 12 of the Bihar Money Lenders Act.
2. The facts, briefly stated, are that the petitioner had borrowed Rs. 12,000/- from respondent No. 1 under two mortgage bonds of Rs. 6,000/- in each case, on the basis of certain agricultural lands. From the recitals made in the mortgage bonds, it is clear that the mortgagees were given possession of the mortgaged properties and they were to remain in cultivating possession thereof until the mortgage bonds were redeemed. The mortgagees were also saddled with the liability to pay the rent of the land and a period of five years was fixed in the document besides a personal covenant that in case the mortgagees suffered any loss oh account of the defect of title, then they will be entitled to recover the dues from the person or property of the petitioner.
3. On coming into force of the Bihar Money Lenders Act, 1974, the petitioner made applications in the year 1978 under Section 12 of the said Act before the Anchal Adhikari, Ramgarhwa, (respondent No, 2) for redemption of the mortgage as the period of 7 years stipulated in Section 12 for redemption of mortgage bond had already expired. He accordingly prayed for recovery of possession of the mortgaged lands from respondent No. 1 of the respective cases. The Anchal Adhikari by his order (Annex. 2) as well as the Deputy Collector, Land Reforms, by his order (Annex. 3) on appeal held that the nature of the documents being not purely usufructuary mortgage bond, the petitioner was not entitled to the benefits of the provisions of automatic redemption after the expiry of the period of 7 years provided under Section 12. In coming to this conclusion they have referred to the personal covenant already stated earlier, and the five years period mentioned in the mortgage bonds. And on reference to various authorities they have come to the conclusion that the nature of the transaction being anomalous mortgage, the petitioner had no right of relief under the above provisions of the Act.
4. In the counter-affidavit it has not been disputed that the petitioner had delivered possession of the mortgaged property to the mortgagees and that they have been enjoying the usufruct of the land. In my considered opinion, the effect of the non obstante clause in Section 12 is a clear indication of the legislative intent that it has to be given an overriding effect over all other existing laws. The makers of the law have clearly intended that if the mortgagee has remained in possession of the land and enjoyed the usufruct thereof, then the mortgage bond shall be deemed to have been fully satisfied out of the usufruct and the mortgage shall be deemed to have been wholly redeemed and on expiry of the period of 7 years from the date of execution of the mortgage bond in respect of such land the mortgagor shall be entitled to recover possessionin the manner prescribed. The crux of the matter, therefore, is the enjoyment of the usufruct of the mortgaged land for the purpose of invoking this beneficent provision in favour of the mortgagors and if that fact is established, then, in my view, simply on account of the fact that the mortgage bond includes certain other matters and stipulations and thereby it having been classified as an anomalous mortgage, the protection provided under Section 12 to the mortgagor cannot be taken away. I may take support for this view from the case of Sushil Kumar Singh v. Brij Mohan Singh, AIR 1981 Pat 172. In that view of the matter, the executive authorities have taken an erroneous view of the matter and have committed an apparent error of law. It has, therefore, to be held that all the dues in respect of the usufructuary mortgage bonds in question must be deemed to have been fully satisfied and the mortgage bonds fully redeemed. The petitioner is accordingly entitled to recover possession of the mortgaged lands in the prescribed manner.
5. In the result, both the applications are allowed. Since the respondent No. 1 of each of the cases has remained for several years in possession of the mortgaged property, to which otherwise they were not so entitled, I shall award costs to the petitioner in both the cases to off-set the said loss to some extent. Hearing fee is assessed at Rs. 2507- in each case.
Yadunath Sharan, J.
6. I agree.