HAJI FATMA BEE Vs. PRAHLAD SINGH

JUDGEMENT

(1.) This is appeal by the defendant. The respondent-plaintiff, vide the registered mortgage deed dt. 29-4-1972 (Ex. P-2), mortgaged Khasra Nos. 14, 17 and 18, area 6.63 acres in Sehore District with the appellant, to secure a sum of Rs. 3,000/-. The amount so secured was to be repaid within a period of five years. Possession of the property was delivered to the mortgagee, who was to enjoy its usufructs. The mortgage was said to be usufructuary. By an amendment in para 3 of the plaint, it was pleaded that in view of S.165(b) of the M. P. Land Revenue Code, 1959, the mortgage was void, because there was no condition in the mortgage deed that on the expiry of the period mentioned therein, the mortgage shall be deemed to be redeemed in full without any payment whatsoever by the plaintiff respondent. As possession was not delivered to the respondent on the expiry of the period mentioned in the mortgage deed, it was pleaded that the mortgagee was liable to account for the profits and usufruct of the mortgaged land for a period from 29-4-1972 until the date of delivery of possession. The mesne profits were claimed at the rate of Rs. 600/- per annum from 29-4-1972 to 28-4-1974 and Rs. 1200/- per annum from 29-4-1974 until delivery of vacant possession of the property. The loan was to be adjusted towards this amount due from the appellant to the respondent. The appellant's defence to the suit was that till before 28-4-1977, the respondent had no right to redeem and the suit was, therefore, premature. No profits could be adjusted towards the principal amount. S.165(b) of the 1959 Code was not attracted, because the mortgage in question was not usufructuary but was anomalous.

(2.) The trial Court held that the respondent had a right to redeem the mortgage at any time within five years and, therefore, the suit filed on 7-5-1974 could not be said to be premature. It was also found that the amount of profits earned by the appellant shall not be appropriated towards the principal amount secured under the mortgage. The respondent was entitled to redeem the mortgage on payment of the mortgaged money. The mesne profits earned could not be appropriated towards the mortgaged money. It was, however, held that the mortgage was void in view of S.165 (b) of the 1959 Code, but in view of S.65 of the Contract Act the parties were liable to return to each other the benefits earned under the contract The final conclusion by the trial Court was that on payment of Rs. 600/- to the appellant the respondent was entitled to obtain possession of the suit land. The defendant appellant felt aggrieved by this judgment and decree of the lower Court and, therefore, appealed. The lower appellate Court confirmed the finding of the trial Court that the mortgage was usufructuary and was hit by S.165(b) of the 1959 Code. It was, however, held that as the period of five years, from the date of mortgage was to expire on 28-4-1977, the appellant should deliver possession of this property to the respondent mortgagor on 29-4-1977 and also return the mortgage deed making necessary endorsement thereon and upon failure of the appellant to do so, the respondent was held entitled to obtain those reliefs through the process of the Court. The defendant-appellant feels aggrieved by this judgment and decree and has, therefore, appealed.

(3.) As the fate of the suit mainly depends upon the finding as to kind of the mortgage, it has first to be seen whether the mortgage in question was usufructuary or anomalous. S.58(d) of the T. P. Act defines usufructuary mortgage. According to this section, a usufructuary mortgage covers a transaction where the mortgagee is put in possession with the condition that the rents and profits are to be utilized in lieu of interest or in payment of the mortgage-money, or partly in lieu of interest and partly in payment of mortgage-money. The delivery of possession and enjoyment of the usufruct is an incident of ownership to which the usufructuary mortgagee becomes entitled on execution of the security.