MALTI DEVI Vs. BINOY KUMAR GUPTA

JUDGEMENT

(1.) THIS second appeal has been preferred against the judgment and decree passed by the 4th Additional District Judge, Gaya, dated 21.3.87 in Title appeal no. 10/77, confirming the judgment and decree dated 29.3.76 passed by 2nd Additional Subordinate Judge, Gaya, in Mortgage suit no. 2/75. Both the lower courts decreed the plaintiff -respondents ' suit and hence this second appeal has been filed by the defendants of the title suit.

(2.) THE relevant facts for reference in the second appeal, as per the pleading of the plaintiffs, were to the effect that the ancestors of plaintiff - respondents had executed a usufructuary mortgage dated 11.6.1936 in favour of Jadu Ram as karta of his family consisting of Raghunandan Ram (defendant no. 1) and others. The mortgage money was Rs. 7,425/ -. The period of mortgage was for seven years. The mortgagees were given possession of the mortgage property which was a house bearing old holding no. 195 corresponding to new holding no. 407 situated in the Tekari road mohalla, ward no. 4 of Gaya Municipality, in the town of Gaya. The mortgagees were to pay the municipal taxes as also other taxes which they failed to pay. So, the plaintiffs had to bear the cost of rent to the tune of Rs. 452.75 paise plus Rs. 13.52 (moterfa rent). Besides the above, the mortgagees were earning rent from the suit house at the rate of Rs. 500/ - per month and, so, their income was sufficient to satisfy the principal amount of loan along with interest. In that view of the matter, the mortgage stood redeemed and, so, the defendant -appellants were liable to give back the possession of the suit land in favour of the plaintiff -respondents. The plaintiff -respondents had sought recovery of possession of the suit house and they had also sought a direction upon the defendant -appellant to render accounts of the income from the suit house.

(3.) BOTH the lower courts decreed the suit of the plaintiff -respondents and directed the defendant -appellant to render accounts of the income which they were realising from the suit house. During the course of submission before this Court, the respondents ' lawyer referred to Section 11 of the Bihar Money Lenders Act, 1974, as also Section 2K of the aforesaid Act and it was submitted that the. mortgagees were not entitled to realise more than double of the original mortgage money along with the interest. Section 2K of the aforesaid Act defined loan which covered even a loan advanced by a casual money lender and not necessarily a registered money lender. Appellants ' lawyer referred to Section 77 of the T.P.Act and it was submitted that under the law laid down under this section, the mortgagee was not liable to render accounts of the income derived from the mortgaged property. Besides the above, half of the suit property was purchased by one of the co - sharers of the mortgagee Jadu Ram and, therefore, they had acquired title over half of the mortgaged property, which was not liable to redemption.