LAWS(PAT)-1984-9-2

JANG BAHADUR SINGH Vs. BAIDYANATH PRASAD

Decided On September 20, 1984
JANG BAHADUR SINGH Appellant
V/S
BAIDYANATH PRASAD Respondents

JUDGEMENT

(1.) Both these cases have been heard together as common questions of fact and law arise in them and they are being disposed of herewith. The petitioner in both the cases is the same and the question arising therein is as to whether an anomalous mortgage in which delivery of possession of the mortgaged property has been given to the mortgagee but with a personal covenant of re-payment of the mortgage money, can be covered under S.12 of the Bihar Money Lenders Act.

(2.) The facts, briefly stated, are that the petitioner had borrowed Rs. 12,000/- from respondent No. 1 under two mortgage bonds of Rs. 6,000/- in each case, on the basis of certain agricultural lands. From the recitals made in the mortgage bonds, it is clear that the mortgagees were given possession of the mortgaged properties and they were to remain in cultivating possession thereof until the mortgage bonds were redeemed. The mortgagees were also saddled with the liability to pay the rent of the land and a period of five years was fixed in the document besides a personal covenant that in case the mortgagees suffered any loss on account of the defect of title, then they will be entitled to recover the dues from the person or property of the petitioner.

(3.) On coming into force of the Bihar Money Lenders Act, 1974, the petitioner made applications in the year 1978 under S.12 of the said Act before the Anchal Adhikari, Ramgarhwa, (respondent No. 2) for redemption of the mortgage as the period of 7 years stipulated in S.12 for redemption of mortgage bond had already expired. He accordingly prayed for recovery of possession of the mortgaged lands from respondent No. 1 of the respective cases. The Anchal Adhikari by his order (Annex. 2) as well as the Deputy Collector, Land Reforms, by his order (Annex. 3) on appeal held that the nature of the documents being not purely usufructuary mortgage bond, the petitioner was not entitled to the benefits of the provisions of automatic redemption after the expiry of the period of 7 years provided under S.12. In coming to this conclusion they have referred to the personal covenant already stated earlier, and the five years period mentioned in the mortgage bonds. And on reference to various authorities they have come to the conclusion that the nature of the transaction being anomalous mortgage, the petitioner had no right of relief under the above provisions of the Act.