BRINDA BALA DEBI Vs. GOUR MAHOTO

JUDGEMENT

(1.) This Rule is directed against the order dated August 30, 1976 passed by the learned Munsif at Purulia rejecting the petitioner's application under Section 38 of the Bengal Money-lenders Act, 1940. The facts in short are as fallows :-- The petitioner borrowed a sum at Rs. 1,200/- by executing an usufructuary mortgage deed dated March 3, 1967 in favour of the lender late Balaram Mahoto in respect of 1 acre of kamali land. The said lender and on his death his heirs, the opposite parties had been in possession thereof by cultivation. According to the petitioner, the lender and his successors had realised Rs. 2,100 for paddy and Rs. 700 for straw in all Rs. 2,800/-during 1967 to 1973 i. e. more than double the principal. As such the petitioner was entitled to a declaration that nothing is due on the kotkobala (usufructuary mortgage deed). The application was accordingly filed on April 16, 1974 for a taking account of the said loan and for declaration that nothing was due to the lender or his heirs. In case the Court found that the loan was not fully satisfied, there was the alternative prayer for determination of the amount still payable by the borrower petitioner The application was registered as Misc. Case No. 53 of 1974.

(2.) The opposite parties contested the application contending thai the transaction was not a loan and consequently the application under Section 38 of the Act was not maintainable. It was also contended that the opposite parties were not the lenders under the Act and as such no relief was available against them on the said application. Further the annual income from the land less costs for production was Rs. 100/- for paddy and Rs. 5/-for straw, which for six years amounted to Rs. 630/- only. The application accordingly was liable to be dismissed.

(3.) The learned Munsif by the impugned order held that though the application was otherwise maintainable, thr definition "lender" defined in Section 2 (9) does not include the heirs and successors-in-interest. The application under Section 38 of the Act was accordingly not maintainable and as a result the Misc. Case was dismissed. The present rule is against this order.