BANKU BEHARI CHANDRA Vs. KALYANI DEBI

JUDGEMENT

(1.) This appeal arises under the following circumstances:

(2.) The respondent brought a suit, purporting to be one under Section 36 of the Bengal Money-Lenders Act on the allegation inter alia that she borrowed Rs. 2,500 from the appellant, who was a money-lender, through her husband. The transaction, however, which was intended to be a mortgage, was made or effected in the form of a sale with a separate agreement of re-purchase or re-conveyance. As a matter of fact, there were two documents, a conveyance or sale-deed, and an agreement for re-conveyance and the learned trial Judge dismissed the suit on the preliminary ground that, having regard to the said two separate documents and in view, particularly, of the proviso to Section 58 (c) of the Transfer of Property Act, the transaction cannot, in law, be regarded as a mortgage and, accordingly, the present suit on that basis would fail.

(3.) From this decree of dismissal, an appeal was taken by the plaintiff respondent to the lower appellate Court, which was eventually heard by the learned Additional District Judge, who held, relying, in particular, upon the decision of this Court, reported in Mahindra Nath Bose v. Manindralal Gupta, ILR (1956) 1 Cal 59, also reported briefly in AIR 1955 NUC (Cal) 2334, that the present suit would be maintainable, not on the footing of a mortgage, as no mortgage can, in law, be found on the basis of the said two documents, but on the footing of a "loan in substance" so as to fall within the definition of loan' under Section 2(12) of the Bengal Money-Lenders Act, if the necessary conditions therefor, as laid down in the above decision, are found to be satisfied. In this view, he set aside the dismissal of the suit by the learned Munsif on the preliminary ground and sent the matter back to the trial court on remand for a fresh and further hearing in accordance with law in the light of the observations, made in his judgment.