SATYANARAIN PRASAD Vs. ADYYA PRASAD SINGH

JUDGEMENT

(1.) The defendant-appellant executed a rehan bond in favour of the plaintiff-respondent on the 21st of July, 1949, on taking a loan of Rs. 6,000/-. On the 25th of July, 1949, only four days later, he executed a kabuliat agreeing to pay a Hunda rent of Rs. 720/-for the period Sawan 1356 Fasli to the 30th Baisakh 1357 Fasii which was described as a period of one year for the reasons to be stated hereinafter. The present suit giving rise to this appeal was instituted by the respondent for re-covery of Hunda rent for the years 1361 and 1362 Fasli plus some amount of interest thereon.

(2.) The trial Court Held :

(3.) Mar. L.K. Choudhari, appearing in support of this appeal, placed reliance upon two Bench dedsions of this Curt in Baijnath Prasad v. Jang Bahadur Singh, AIR 1955 Pat 357 and in Gaya Prasad Sah v. Chitrakut Narain sinha, AIR 1960 Pat 485 and submitted that no decree could be passed in favour of the plaintiff in this case for a part of the mortgage money or interest after finding that the apparent two transactions, namely, the transaction of mortgage and lease were part of the same transaction. The contention was well founded and could not be combated by Mr. J.C. Sinha appearing for the plaintiff-respondent. The case of AIR 1960 Pat 485 has referred to an unreported Bench decision of this Court in Puna Sahu v Girnari Lal S. A. NOS. 1350 and 1956 of 1955, D/- 4-2-1960. Mr. Sinha however, contended before me when this case was taken up by me previously on the 22nd November, 1960, that on a true construction of the kabuliat (Ext. 3) and the zerpeshgi deed (Ext. 4), it would appear that they are not parg of the same transaction as has been held by the trial Court and assumed by the lower appellate Court. At his request and at the cost of the plaintiff-respondent I got those two documents translated- The two documents were placed before me now in extenso, and I have considered the terms of the two documents carefully. In support of bis contention Mr. Sinha placed reliance upon Udai Chand v. Jang Bahadur Singh, 2 pat LJ 353 : (AIR 1917 Pat 401), Umeshwar Prasad v. Dwarika Prasad, AIR 1944 pat 5 and Ganpat Turi v. Mohamad Asraf Ali, 1960 BLJR 605 : (AIR 1961 Pat 133). He stressed over the lack of one term in Ext. 4, namely, that it is not provided therein that the principal sum of RS. 6,000/- was to cany any interest. He, therefore, submitted that this was a pure usufructuary mortgage transaction, and, therefore, the lease evidenced by the kabuliat could not be said to be a device to pay any amont of interest as no interest had been fixed by the mortgage bond (Ext. 4). I am unable to accept this contention. Firstly, It is to be noted in this particular case that the decision of the learned Munsif, as I have said above, was on the finding that the two transactions in effect were part of one and the same transaction, and on that basis the leared Munsif had granted a decree for interest and not for rent. The plaintiff had a right of appeal. He neither filed any appeal nor did he file any cross-objection when the defendant filed his appeal The lower appellate Court, as I have said above, assumed this decision to be correct as it does not seem to have been challenged there even under Order 41 Rule 22, Civil Procedure Code. Since this question is a mixed question of law and fact, and in Order to satisfy myself I proceeded to examine the terms of the two deeds. The important facts which are present in the instant case are (1) that the whole of tho property which was given in mortgage was leased back to the mortgagor; (2) although the two documents were executed at an interval of four days, the stamps for both were purchased on the same date; (3) the mortgage bond (Ext. 4) provides: