BRINDA BALA DEBI Vs. GOUR MAHATO

JUDGEMENT

(1.) THIS Rule is directed against the order dated august 30. 19. 6 passed by the learned mansu and Purna rejecting the petitioners under application under section 38 of the Bengal money lenders Act, 1940. The facts in shorts are as follows:-The petitioner borrowed a sum of Rs. 1200/- By executing an usuiructualy mortgage and dated march 3, 1967 in favour of the lender fate Bataram Mahato in respect of 1 acre of kamali land. The said tender and on ms death his heirs, the opposite parties and been in possession thereof by cultivation. According to the petitioner, the tender and his successors had realised Rs. 2100/- for paddy and rs. 700/- for straw in all Rs. 2800/-during 1967 to 1973 i. e. more than double the principal. As such die petitioner was entitxed to a declaration that noting is due on tie kotkobala unsurructualy mortgage deed ). The application was accordingly filed on April 16, 1974 for taking account of. . . the said loan and or declaration that nothing was due to the lender or Ms heirs. In case the Court found that the loan was not fully satisfied, there was not fully alternative prayer for determination of the amount still payable by the borrower petitioner. The application was registered as Misc. Case No. 58 or 1914.

(2.) THE opposite parties comates the application commending that the transaction was not a loan and consequent the application under section 38 of the Act was not maintainable. it was also contented that the opposite parties were not the tender under the Act and as such no relief was available against them on the said application, further the annual income from the tanulebs costs or production was 100/- for paddy and its. 5/- for stratw, which for six years amount to Rs. 30/- only. The application according was liable to be dismissed.

(3.) THE learned Munsif by the impugned order held that though the application was otherwise maintainable, the dedication "fender" defined in Section 'a (he does not include has heirs and successors-in-interest. The application under section 38 of the act accordingly not maintainable and as a result the Misc. Case was unmissed. The present rule is against tins order.