BHUNESHWAR PRASAD SHARMA Vs. SURYAMUKHI DEVI

JUDGEMENT

(1.) The somewhat ticklish question which comes to the fore in this reference to the Full Bench is whether a term of personal covenant to pay the mortgage amount in a deed of usufructuary mortgage would convert it into an anomalous one for the purposes of Section 12 of the Bihar Money Lenders Act, 1974 ? Equally at issue is a somewhat veiled doubt of a coflict betwixt Division Bench judgments in Had Narain Singh v. The State of Bihar and others, 1982 PLJR 446 and Kapildeo Narain Singh v. Deputy Collector, Land Reforms, 1985 BBCJ 119.

(2.) The facts giving rise to the issue aforesaid are intermingled in the somewhat parallel proceedings betwixt the parties in the Civil Courts and before the authorities under the Money Lenders Act. Since admittedly with regard to the proceedings in the Civil Courts, First Appeal No. 201 of 1983 is pending in this High Court against the judgment and decree, dated the 29th of January, 1983, and the matter is subjudice, it is both apt and necessary to separate that aspect and reference to the same becomes somewhat unnecessary.

(3.) On the 16th November, 1967, respondent No. 1, Smt. Suryamukhi Devi executed two registered deeds in favour of the petitioner with respect to an area of 2 bighas 7 dhurs appertaining to village Saundhini, district Siwan, whereby the agricultural land belonging to respondent No. 1 was hypothecated to the petitioner for a sum of Rs. 8,000 and the express term of this deed was that the petitioner would continue in possession of this land for three years and will remain in possession till the satisfaction of the said mortgage amount. It was also agreed that the petitioner would be entitled to realise one per cent, per month as interest in case of dispossession.