BINPANI PURKAYASTHA Vs. NARENDRA KUMAR PURKAYASTHA AND OTHERS

JUDGEMENT

(1.) This appeal arises from the judgment and decree passed by the District Judge (2) Gauhati in TA No. 11 of 1975 from the judgment and decree passed by the Munsiff (II) Gauhati in TS No.2 of 1972.

(2.) Facts giving rise to this appeal, in brief, are as follows. The plaintiffs instituted the suit in the Court of the Munsiff for foreclosure of mortgaged property (suit land) having an area of 12 Bighas. The case of the plaintiffs is thus. Three sister, namely Sabitri Bala, Basanti Bala and Binapani (since deceased) mortgaged the suit land to the plaintiff-1 and the plaintiff-2's father by executing a registered mortgage dead dated 18-6-1951 for a loan of Rs. 1,350.00 advanced to them with interest 12%. The mortgagors delivered possession of the mortgaged property on 18-6-1951 to the mortgagees and authorised them to receive profits from the suit land and appropriate the same towards interest. It was also stipulated in the mortgage that the sum of Rs. 1,350.00 would be paid by the mortgagors within three (3) years, and. that if the mortgagors failed to pay the mortgaged-money, or mortgagors failed to redeem the property within the stipulated period of three (3) years, the mortgagees would be entitled to a sale deed executed in respect of the mortgaged property through Court for Rs. 1,350.00 which had already been paid. The mortgagers failed to pay the debt within the time as was stipulated and, therefore, the mortgagees filed the suit.

(3.) The mortgager Binapani (defendant-2) contested the suit. Her case is that the mortgage was an usufructuary mortgage. The plaintiff have been in possession of the it land till date and the plaintiffs had already received profits of Rs.54,506.50 from the mortgaged property in excess of the mortgage-money. Therefore, the mortgagors were not entitled to any relief. She also claimed, inter alia, delivery of possession of the mortgaged property along with relevant documents. The Trial Court held that the mortgage was not an usufrcutuary mortgage, but it was an anomalous mortgage, and that the mortgagers had failed to pay the debt. Thereafter, the Trial Court decreed the suit in the following terms. The defendants were directed to deposit the sum of Rs. 1,350.00 with interest at 5% per annum from 18-6-1951 to 18-6-1954 and costs of the litigation within 16-1-1975, and the plaintiffs were directed to deliver the possession of the mortgaged property to the defendants along with the relevant documents and to re transfer the mortgaged property. In the event of defendants ' failing to deposit,. a final decree shall be prepared debarring the defendants from all right to redeem the mortgaged property. The lower appellate Court passed a decree for foreclosure of the mortgaged property. Hence this appeal.