SAVITRI DEVI Vs. BENI DEVI

JUDGEMENT

(1.) This second appeal is by defendant No. 2 against concurrent judgments and decrees of the two courts below, decreeing the suit of the plaintiff for a mortgage decree on the basis of a mortgage dated 9-8-1950 Facts relevant for the decision of the appeal are not in dispute and may briefly be stated On 9-8-1950, defendant nos. 1 and 2 executed a deed of mortgage in favour of the plaintiff for a consideration of Rs. 4000 for a period of three years in respect of holding Nos. 58 and 59 in Ward No. I of Gaya Municipality. On the same date, the plaintiff executed a deed of lease in their favour for a period of three years in respect of the property mortgaged. The defendants were to pay a sum of Rs. 40 per month to the plaintiff as rent. On 17-1-1953 defendants nos. 1 and 2 sold the whole of holding no 59 and part of holding No. 58 to the appellant. A sum of Rs. 4,000 out of the consideration money for the sale deed was left in deposit with the appellant for payment to the plaintiff Rent up to January, 1953 was paid to the plaintiff and thereafter it was stopped. Subsequently, defendant nos. 1 and 2 sold the remaining portion of hold-ins No. 58 to defendant No. 4 During the pendency of this suit, holding No. 58 was auction purchased by defendant No. 5 and, therefore, he too was added as a party to the suit. Before the institution of the suit the plaintiff had filed a case for eviction before the House Controller Gaya, as according to him defendant No. 3 had agreed to pay rent to the plaintiff but failed to pay. This case was dismissed by the Controller on the finding that there was no relationship of landlord and tenant between the plaintiff and defendant No. 3, i. e., the appellant. Simple defence of defendants 1 and 2 was that they had parted with the house and left with no interest in it and, therefore, not liable for the money under the mortgage. Defence of defendant No. 3 i. e., the appellant, was that he was willing to pay Rs. 4,000 to the plaintiff, if he accepted it and did not claim any damages; that as the plaintiff was not a registered money lender the suit was barred under Section 4 of the Bihar Money Lenders Act and that no mortgage decree could be passed in the suit as prayed for by the plaintiff The trial court passed a mortgage decree in favour of the plaintiff which has been confirmed by the lower appellate court on appeal

(2.) Mr. Kanhaiyaji. appearing for the appellant, has raised the following three points :-- (1) As found by the two courts below, it was an usufructuary mortgage and no mortgage decree, i. e., a decree for realisation of the mortgage money by sale of the property mortgaged, could be passed. (2) The suit was barred under Section 4 of the Bihar Money Lenders Act and (3) As the plaintiff did not claim any interest, the courts below were wrong in granting him a decree for interest prior to the dale of institution of the suit as well. The second and third points raised by Kanhaiyagi do not require any detailed consideration and they may be disposed of before taking up for discussion the first point raised by him. Both the courts below have concurrently held that the plaintiff was not a money lender within the meaning of the Bihar Money Lenders Act inasmuch as money lending was not his profession and, therefore, the suit was not barred under Section 4 of the Bihar Money Lenders Act. It is now well settled that Section 4 of the Bihar Money Lenders Act applies only to those who carry on the profession or business of money lending. In the case of Sano Kashinath Chowdhury v. Patitto Sabuto, AIR 1942 Pat 384, a Bench of this Court, with reference to Orissa Money Lenders Act containing similar provisions as Bihar Money Lenders Act, held that an element of continuity and habit is essential to constitute the exercise of a profession or business and a man does not become a money lender merely because he may, upon one or several isolated occasions, lend money to a stranger. In this case as well as in the case of Lakhi Narayan Sao v. Smt. Bhagwati Kuer, AIR 1963 Pat 350, which is also a decision of a Bench of this Court on the Bihar Money Lenders Act, it was observed that the business of money lending imports a notion of system, repetition and continuity. In the case of Mt. Surajbansi Kuer v. Mt. Larho Kuar, AIR 1946 310, a Division Bench of this Court held that provisions of Section 4 of the Bihar Money Lenders Act were never intended to apply to cases of isolated or intermittent instances of lending. In another Bench decision of this Court in Bhutnath Kumar v. Nilkantha Narain Singh. AIR 1949 Pat 400, it was laid down that provisions of the Bihar Money Lenders Act as to registration of the money lenders cannot apply to casual money lenders, Mr. Kanhaivaji, appearing for the appellant, argued, however, that only persons advancing accommodation loans are exempted from the provisions of registration of the money lenders in the Act and in support of this he relied on the observations of Mc-Cardia, J. in the well known case of Edge-low v. Mac Elwee. (1918) 1 KB 205. also quoted in the case of Dr. Nilkanth Prasad v. Bhola Nath, 1965 BLJR 774 by a Bench of this Court. The observations are "A man does not become a money leader by reason of occasional loans to relations, friends or acquaintances, whether interest be charged or not." It does not follow from the aforesaid observation that occasional cases of lending to persons other than relations, friends and acquaintances make a person professional money lender. In the very passage which has been quoted in the aforesaid decision it has also been observed "there must be more than occasional and disconnected loans. There must be a business of money lending and the word 'business' imports the notion of system, repetition and continuity." In fact these words which were used in two other decisions of this Court already referred to above, were borrowed from the observations of McCardia, J. Rather, Harries C. J. in the case of Sano Kashinath Chowdhury, AIR 1942 Pat 384 also quoted these observations, In the case of Dr. Nilkanth Prasad 1965 BLJR 774 as well which was cited by Mr. Kanhaiyaji it was held that the particular transaction with which their Lordships were concerned was not a loan within the meaning of the Bihar Money Lenders Act. A case is authority for what it actually decides and there is nothing in the said case to justify a contention that a view, different from one taken in other Bench decisions of this court already referred to above, was taken in this case. Mr. Kanhaiyaji could not point out any error of law in the finding of the courts below that the Plaintiff was not a professional money lender. Whether the plaintiff is a professional money lender or not is a question of fact and there is no substance in his contention that the suit was barred under Section 4 of the Bihar Money Lenders Act.

(3.) In his plaint, the plaintiff did not specifically claim interest but claimed damages at the rate of Rs. 40 per month which was the rent fixed by the lease deed for the house mortgaged, from the time its payment was stopped till the date of the institution of the suit. The mortgage deed (Ext. 3) provided that in case of dispossession the mortgage will be entitled to realise the entire mortgage money of Rs. 4,000 with interest at the rate of one per cent per annum. The interest at the said rate calculated for the said amount also comes to Rs. 40 per month. As it was a case of a secured loan, the courts below have allowed interest at the rate of 9 % per annum which is less than the amount claimed. The claim for damages was really a claim for interest as agreed in the mortgage deed and the decrees of the courts below cannot be set aside on the ground that the plaintiff did not claim the amount as interest but claimed it as damages. All the relevant facts entitling the plaintiff to the interest were stated in the plaint and it is well settled that it is for the parties to state the facts and for the courts to grant reliefs. In the circumstances, there is no substance in the third contention of Mr. Kanhaiyaii either.