IQAN HUSAIN Vs. SAHU BABU RAM

JUDGEMENT

(1.) This is a first appeal from order by certain applicants under Section 12, U.P. Agriculturists Belief Act of 1934 who applied for redemption of a usufructuary mortgage, prior to the Act, for Rupees 10,000, dated 5 July 1927, executed by the applicants and their father in favour of opposite party 1, Sahu Babu Ram. The mortgage in question was for a term of ten years from 1335 Fasli to 1344 Fasli ending on 30 Juno 1937. Under its terms, the mortgagee was to appropriate all the profits for ton years in full satisfaction of the entire mortgage money, principal and interest, and at the end of the year 1334 Fasli, that is on 30 June 1937, the mortgaged property was to be returned to the mortgagors free of any incumbrance or charge under the mortgage. The mortgagees had failed to deliver possession on this date and therefore the application was made for redemption on 24 July 1937. No deposit was made because the entire mortgage money had been fully paid up. The learned Additional Civil Judge had a question before him as to whether the application would lie under Section 12, U.P. Agriculturists Belief Act, and he held that it would not and he dismissed the application. His grounds were that Section 12 of the Act does not apply to the case when nothing is due to the mortgagor on account of the mortgage money and when no deposit has been made and that the form prescribed by the rules under the Act must be used for an application and that form shows that mention should be made of the amount of the money deposited for redemption, and therefore some deposit must be made. The view which he took was that the Act was defective and although mortgages of this nature were dealt with by Section 11, the Act had omitted to deal with them under Section 12.

(2.) The question is whether an application can be made under Section 12, Agriculturists Belief Act, in a case like the present where the mortgage was made before the Act and provided that the usufruct for the period was to discharge the principal and interest of the mortgage money. The reasoning of the trial Court is as follows: Section 11 deals with such mortgages executed after the Act and provides for an application by the person entitled to possession after the expiry of the period. Section 12 does not refer specifically to such mortgages, but refers to mortgages made before or after the Act, and directs the applicant to state the sum which he believes to be due and to deposit-it in Court. The lower Court also states that the principle of Section 62(a), T.P. Act, does not appear to be embodied in Section 12, It has also been argued that the opening words in Section 12 "notwithstanding anything, contained in Section 83, T.P. Act," imply that Section 12 is limited to such cases where Section 83 would apply, that is cases where the applicant desired to stop the interest running on the balance by making the deposit, as is provided in Section 84. The trial Court has concluded that such a mortgage made before the Act does not come under Section 12 and that the applicant must file a suit for redemption in the Civil Court, and has dismissed the application.

(3.) To deal with these points, it is necessary to analyze Ch. 3, Agriculturists Belief Act. That chapter is headed "Mortgages and their redemption" and Section 24 limits the applications under the chapter to agriculturists. Section 25 bars suits in the Civil Court for any relief which can be obtained by application under the chapter. It is clear that the intention was to deal comprehensively with all cases of redemption by agriculturists. The first Section of the chapter, Section 9, deals with a particular kind of mortgage after the Act, of a particular kind of property; there is a direction that: No mortgage of land or grove by an agriculturist made after the commencement of this Act shall be valid if, under the terms of such mortgage, possession is delivered unless the usufruct is to pay off both interest and principal in a term not exceeding 20 years. Expl. (4) defines land as a mahal or part of a mahal or plots in a mahal. The same kind of mortgage is apparently referred to in Section 11, an a mortgage for possession made after the commencement of the Act, and the Section provides for an application by the person entitled to possession, on which the Court shall direct that the mortgage be redeemed and eject the mortgagee and may direct him to pay compensation to the mortgagor if necessary. We then come to Section 12 which provides as follows: Notwithstanding anything contained in Section 83, T.P. Act, 1882, or any contract to the contrary, an agriculturist who has made a mortgage either before or after the passing of this Act, or any other person entitled to institute a suit for redemption of the mortgage, may, at any time after the principal money has become due, and, before a suit for redemption is barred, file an application before the Court within whose jurisdiction the mortgaged property or any part of it is situate, in such form and giving such particulars as the Local Government may by rule prescribe, and praying for an order directing that the mortgage be redeemed, and, where the mortgage is with possession, that lie be put in possession of the mortgaged property the application shall be duly verified in the manner prescribed by law for the verification of plaints and shall state the sum which the applicant declares to the best of his belief to be due under the mortgage. The applicant shall at the same time deposit such sum with the Court.