RAMDHAN PURI Vs. BANKEY BIHARI SARAN

JUDGEMENT

(1.) This appeal by certificate under Art. 133 (1) (a) of the Constitution of India is directed against the judgment and decree of the High Court of Judicature at Patna setting aside those of the Subordinate Judge, Gaya, in a suit for redemption of an usufructuary mortgage.

(2.) Deokinand, the common ancestor of plaintiff-respondents 1 to 4 and pro forma respondents 6 to 12, executed a document dated August 20, 1923, in favour of Mahant Tokhnarain Puri of Nadra, the predecessor-in-interest of defendant 1, hypothecating eight annas milkiat share in mauza Lodipur, Mahimabigha, Tauzi No. 4246 for the purpose of discharging a debt of Rs. 31,701 payable by him to the Mahanth. There are conflicting versions in regard to the nature of this transaction - respondents claim it to be an usufractuary mortgage, while the appellant asserts it to be a lease. The plaintiff- respondents instituted Title Suit No. 4 of 1945 in the Court of the Additional Subordinate Judge IV Gaya, for redemption of the said document on the basis that it was an usufructuary mortgage, for rendition of accounts and for the recovery of surplus profits due to them. The appellant pleaded, inter alia, that the suit for redemption was not maintainable as the document was not a mortgage but a lease, that on the assumption that it was a mortgage it would only be an anomalous mortgage in respect whereof there was no statutory liability to render accounts to the plaintiff, that even if it was an usufructuary mortgage, it was governed by the provisions of S. 77 of the Transfer of Property Act taking the mortgage out of the purview of S. 76 (d) and (g) of the said Act.

(3.) It is not necessary to particularize other defences as nothing turns upon them in the appeal. The learned Sub ordinate Judge held that the document created an usufructuary mortgage and not a lease and that S. 77 of the Transfer of Property Act applied to the document exonerating the appellant from any liability to render accounts, in the result, the learned Subordinate Judge gave a conditional decree in favour of respondents 1 to 4 for possession on their depositing in Court a sum of Rs. 26,839-7-0 within six months from the date of the decree. The plaintiff-respondents preferred an appeal against that decree to the High Court at Patna. The High Court agreed with the learned Subordinate Judge that the document was an usufructuary mortgage but differed from him on the question of applicability of S. 77 of the Transfer of Property Act. The High Court set aside the decree of the learned Subordinate Judge and passed instead a preliminary decree for redemption and sale on default of payment : the decree also directed the rendition of accounts between the parties in the light of the directions given in the judgment. The second defendant against whom the decree was passed preferred the above appeal.