Patna High Court
Surendra Prasad vs Member, Board Of Revenue, Bihar, Patna ... on 13 July, 1994
Equivalent citations: AIR1995PAT69, AIR 1995 PATNA 69, (1995) 1 PAT LJR 377
Author: A.K. Ganguly
Bench: Asok Kumar Ganguly
JUDGMENT A.K. Ganguly, J.
1. The application of Section 12 of the Bihar Money-Lenders Act (hereinafter referred to as the said Act) to the mortgage deed dated 21-6-1952 is the issue raised in this case.
2. The facts of the case are that one Bandhu Chamar, owner of Plot No. 1139 under Khata No. 18 measuring 11 kathas 14 dhurs in village Kharauni, District Gopalganj executed adeed of mortgage dated 21-6-1952 wherein the father of the petitioner as the mortgagee got the possession of the plot in question. After the death of the father of the petitioner, the petitioner and other members of the family of which the petitioner is the Karta came into possession and is still in possession of the plot in question. Respondent No. 5 Bhagwati Ram who is the successor-in-interest of Bandhu Chamar filed a petition under Section 12 of the said Act for recovery of possession of the said plot before the Deputy Collector, Land Reforms. The said petition filed by the respondent No. 5 was numbered as M. L. Case No. 504 of 1976-77.
3. It may be stated here that till the filing of the said petition by respondent No. 5 under Section 12 of the said Act, no suit was filed by the petitioner. The said application under Section 12 of the said Act filed by the successor-in-interest of respondent No. 5 was allowed by the Deputy Collector Land Reforms, Gopalganj by an order dated 28-9-1977 and during the pendency of the said proceeding a title suit was filed by the petitioner for foreclosure and the said title suit was numbered as Title Suit No. 220 of 1977.
4. In the said suit an ex parte order was obtained on 26th April, 1979 by the petitioner to the extent that the defendant's right to redeem the mortgaged property is barred and the petitioner became purchaser of the suit land and acquired title over the same. On the other hand, in the order dated 20-9-1977 passed by the Deputy Collector, Land Reforms, it was specifically held on a perusal of the recital of the mortgage deed that the deed in question was a usufructuary one and since more than 7 years have elapsed, the applicant (respondent No. 5) is entitled to possession of the mortgaged property under Section 12 of the said Act. It was also held that even though the mortgagee might have been given the right under the mortgage deed to recover the property by instituting a suit but as no evidence was produced before the Deputy Collector, Land Reforms, Gopalganj that any case was instituted for foreclosure, the Deputy Collector, Land Reforms came to the conclusion that the nature of the mortgage deed is a usufructuary one and the respondent No. 5 is entitled to the recovery of possession and the petitioner was directed to deliver possession of the mortgaged land to respondent No. 5. Thereafter on an appeal being filed before the Additional Collector, Gopalganj against the order of the Deputy Collector, Land Reforms, the said proceeding was numbered as ML. Appeal No. 17 of 1977. The said appeal was also dismissed and the findings given by the Deputy Collector, Land Reforms were affirmed.
5. The appellate authority held and quite rightly, in my view, that mere mentioning of the word 'Beveyadi' will not convert the said mortgage deed into one of conditional sale. The appellate authority looked into the recitals of the original mortgage deed and on considering the recitals came to the conclusion that the deed clearly stipulated that the mortgagee was to remain in possession of the mortgaged land and was to enjoy the usufruct of the land till repayment within the stipulated period of five years. The appellate authority of course noticed that there was a recital in the mortgage deed that on the failure of re-payment, the mortgagee was to have his right of possession confirmed by a competent court.
6. It is an admitted position in the instant case that the mortgagee did not go to the Civil Court for declaration of his title prior to the institution of the proceeding under Section 12 of the said Act. The admitted position is that only during the pendency of the said proceeding under Section 12 of the said Act, the mortgagee filed a civil suit. As such on a proper consideration of the facts and circumstances of the case, the appellate authority dismissed the appeal of the mortgagee petitioner.
7. Thereafter a revision was filed in the court of the Commissioner, Saran. The same was also dismissed for default on 20th July, 1981. An application for restoration of the said revision was also dismissed by the court of the Commissioner, Saran on 17th February, 1982. Thereafter a petition was also filed "before the Member, Board of Revenue for recalling of the order passed on revision. The same was also dismissed by the Member, Board of Revenue by an order dated 9th December, 1982.
8. After having lost before all the statutory authorities under the said Act, the petitioner has come before this Court for recalling of the order dated 20th September, 1977 passed by the Deputy Collector, Land Reforms, Gopalganj, then the order dated 5th August, 1980 passed by the Additional Collector, Gopalganj and also the order dated 17th February, 1982 passed by the Commissioner, Saran and also the order dated 9th December, 1982 passed by the Member, Board of Revenue, Bihar, Patna.
9. The only ground urged before this Court at the time of hearing of this writ application is that the mortgage deed in question is one for conditional sale as enunciated in Section 58(c) of the Transfer of Property Act and that the same is not a usufructuary mortgage within the meaning of Section 58(d) of the Transfer of Property Act. Therefore, the provisions of Section 12 of the said Act have no application and as such the proceedings in question be quashed.
10. The provisions of Section 12 of the said Act had come up for consideration by this Court on various occasions and the consistent view of this Court is that usufructuary mortgage contemplated under Section 12 of the said Act is not strictly speaking the usufructuary mortgage as defined in Section 58(d) of the Transfer of Property Act.
11. In a Full Bench judgment of this Court in the case of Bhuneswar Prasad Sharma v. Smt. Suryamukhi Devi reported in 1989 BLJ 338 in paragraph 19 it has been held as follows :--
"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 necessarily 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 a usufructuary mortgage in the Act itself."
12. Keeping the aforesaid principles in mind, the Full Bench of this High Court in the said case of Bhuneshwar Prasad (supra) came to the following conclusion in paragraph 25 of the decision :--
"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."
13. In another judgment of this Court in the case of Kapildeo Narayan Singh v. Deputy Collector Land Reforms reported in 1985 BLJ 119 : (AIR 1985 Patna 183), the learned Judges of the Division Bench after considering the meaning of the word 'usufruct' as appearing in various dictionaries, came to the following conclusion about Section 12 of the said Act at page 186, of AIR.
"By enacting the said section, the legislature has assumed that the Creditor in possession of the mortgaged property repays himself the loan along with interest calculated on reasonable rate by remaining in possession for seven years and it, therefore, unjust and inequitable to deprive the debtor the possession of the mortgage property after this period."
14. The Full Bench judgment in Bhune-shwar Prasad (supra) has approved the said interpretation.
15. In respectful agreement with the aforesaid view, I also hold that the expression 'usufructuary mortgage' as understood in the context of Transfer of Property Act does not apply to the said expression as used in Section 12 of the Act.
16. To the same effect is also the judgment another Division Bench of Patna High Court in the case of Jang Bahadur Singh v. BaidyaNath Prasad reported in 1985 BLJ 116 : (AIR 1985 Pat 190). In paragraph 4 of the said judgment, the learned Judge of the Division Bench have come to the following conclusion at page 191; of AIR:--
"the crux of the matter, therefore, is the enjoyment of the usufruct of the mortgage land for the purpose of invoke this beneficent provision in favour of the mortgagor."
The learned Judges further came to the following conclusion:--
"Simiply on account of the fact that the mortgage bonds includes certain other matters and stipulation and thereby it having been classified as anomalous mortgage, the protection provided under Section 12 to the mortgagor cannot be taken away."
17. As a matter of fact, if one analyses the provisions of Section 12 of the said Act, it will be clear that the intention of the legislature in the said provision was to secure distributive justice through legislation. The said Act is a typical illustration of the concept of the distributive justice. The said concept of distributive justice permeates the constitutional set up and is, therefore, attracted to the sphere of law making for the purpose of redressing economic and social imbalances. The said concept of distributive justice has been dwelt upon by the Supreme Court in the case of Lingappa Pochanna Appealwar v. State of Maharashtra reported in AIR 1985 SC 389 at page 398.
18. Having regard to the aforesaid well settled legal proposition, it is difficult for this Court to accept the contention of the petitioner's counsel that as the recital in the mortgage deed does not strictly fit in with the definition of "usufructuary mortgage within the meaning of Section 58(d) of the Transfer of Property Act, the provision of Section 12 of the said Act is not available to respondent No. 5. I am of the opinion that the said provision has been enacted to achieve a social purpose and it should be the endeavour of the Court could accept the interpretation which furthers the said purpose and not the one which frustrates it.
19. The petitioner's counsel has also faintly tried to argue that the proceedings under the said Act at least from the appellate stage are bad as they have proceeded ignoring the decision of the Civil Court. The said argument is of no avail inasmuch as the provision of Section 12 of the said Act starts with a non obstante clause. Once it is held, as I do hold in this case, that the provisions of Section 12 of the said Act are available to respondent No. 5, the decree of the Civil Court will not stand in the way of the mortgagor's invoking the protection under Section 12 of the Act. Thus both the contentions raised by the petitioner fail.
20. This writ petition is accordingly dismissed. The writ petitioner is hereby directed to act in immediate compliance with the terms of the order dated 20th Sept. 1977 passed by the Deputy Collector Land Reforms, Gopal-ganj by delivering possession of the mortgaged land in question to respondent No. 5. There will be no order as to costs.