SHEO KUMAR SINGH Vs. MAHESH PRASAD

JUDGEMENT

(1.) Appellant's suit for realization of Rs. 4,640/ - from defendant No. 1 was dismissed by the trial court. The appeal also tailed, Thereafter, the second appeal has been filed.

(2.) The facts are not in dispute. Defendant No. 2 executed two usufructuary mortgage deeds on 28.6.1966 - one in favour of defendant No. 1 and another in favour of the aunt of defendant No. 1 shortly after the execution of these deeds; the aunt of defendant No. 1 died and her interest in the mortgaged land were inherited by defendant No. 2. Thereafter on 21.5.1974, defendant No. 1 transferred his right under Ext. 1, a transfernama in favour of plaintiff. It is said that after about a year or so the plaintiff was dispossessed by defendant No. 2, the mortgagor. Thereafter, the suit for realization of money was filed, The courts below have taken the view that the mortgage stood redeemed under Section 12 of the Bihar Money Lenders' Act, 1974 which came into force on 25.7.1975. This section provides that not withstanding anything to the contrary, a usufructuary mortgage, whether executed before or after the commencement of the Act, shall be deemed to have been fully satisfied and the mortgage shall be deemed to have been wholly redeemed on the expiry of a period of seven years from the date of the execution of the bond and the mortgagor shall be emitled to recover possession of the mortgaged land in the manner prescribed under the Rules. Mr. Ghosh says that, since the mortgagor did not take possession under the rules prescribed under the Act, notwithstanding the provisions of Section 12, the mortgage continued and, therefore, he had a right to file the suit under Section 68 (1)(c) of the Transfer of Property Act. It is difficult to accept this position.

(3.) A reading of Section 12 clearly shows that the mortgage is automatically satisfied and stands redeemed on the expiry of seven years from the date of the execution of the mortgage. The latter portion of this section only gives the mortgagor a right to recover possession from the mortgagee if the same is not restored to him. If the argument of Mr. Ghose is accepted that unless possession is restored under the rules, the mortgage continues then the result will be an absurd one because there may be cases where the mortgagee himself may voluntarily give back possession after the expiry of seven years but restoration of possession in that case will not be under the rules and, therefore, according to the logic of the argument, the mortgage will subsist This, in my view, cannot be the intention of the legislature.