1. The plaintiff filed a suit for realization of Rs. 18,430-11-0 on the basis of a mortgage dated 25th July 1924, executed by her husband Syed Hyder Husain in favour of the plaintiff. The mortgage was for Rs. 17,000 and the amount was to carry interest at the rate of 8 annas per cent. per mensem, compoundable annually. The mortgagor had made payments from time to time which were all entered on the back of the mortgage deed and signed by the mortgagor. After the execution of the mortgage, the mortgagor had executed a deed of waqf dated 27th August 1925, and appointed his nephews, defendants 1 to 3, as mutwallis. Defendant 4 is the subsequent transferee. The mortgagor Syed Hyder Husain had died and the suit was filed against the mutwallis, defendants 1 to 3, and the transferee defendant i.
2. In defence, amongst others, two pleas were taken by the contesting defendant. Firstly, that the plaint had not been signed or verified by the plaintiff nor had it been presented by a duly appointed agent, as the advocate Mr. Sami Uddin had been appointed under a vakalatnama which did not bear the thumb-impression of the plaintiff. Secondly, that the defendants were entitled to the benefit of the U.P. Agriculturists' Relief Act and the U.P. Debt Redemption Act.
3. The lower Court dealt with the first point in a very careful judgment and came to the. conclusion that the thumb-impressions on the plaint were not of the plaintiff, that the plaint was not verified by her and that it was presented by a person who had no authority to present it. The lower Court, however, allowed the plaintiff to sign and verify the plaint and sign the vakalatnama on payment of Rs. 100 as costs to the defendants. This sum of Rs. 100 was deposited in Court and the plaint was duly verified and signed by the plaintiff and a fresh vakalatnama was executed in favour of the learned advocate.
4. Learned Counsel for the appellants has admitted that in view of the various payments that were made which are all noted on the back of the mortgage deed and were signed by Syed Hyder Husain, no question of limitation can be raised even if it is held that the suit was filed on the date when the plaintiff was allowed to verify the plaint and sign the same. In that view of the matter, it is not necessary for us to examine in any detail the question of law raised or the authorities that were cited and discussed by the lower Court. In a recent Full Bench decision, (Kanhaiya Lal v. Panchayti Alchara : AIR1949All367 ., of this Court it was held that the mere fact that the plaint was presented by a person who had no power of attorney in his favour was a mere irregularity.
5. The plaintiff's brother Zamir Ali held a general power of attorney from the plaintiff which authorised him to verify plaints, file suits and appoint lawyers on her behalf. It would' have been perfectly in order if he had verified the plaint and signed it on behalf of the lady. For some reason unexplained, the verification was made in the name of the lady and the plaint and the vakalatnama were purported to be signed by her, though it has been held by the lower Court that the thumb-impressions were not of the lady. There can, however, be no doubt that the plaint was filed in accordance with the directions of the plaintiff and the defects in the plaint as instituted were removed by the subsequent verification and signature in pursuance of the order of the Court dated 19th May 1943. It being admitted that on the date of this verification the suit was within time, we do not think it is necessary to discuss this question any further.
6. The other question is whether the defendants are entitled to the benefit of the U.P. Agriculturists' Relief Act and the U.P. Debt Redemption Act. It is not disputed that the defendants are agriculturists. The lower Court held that as the amount, for the recovery of which a decree had been obtained by the plaintiff, was a dower debt, it was not a 'loan' as defined in the Agriculturists' Belief Act and the Debt Redemption Act. The claim was, however, not to recover the dower debt, but to recover the money due on the basis of a mortgage deed. It is true that the plaintiff's decree against her husband was for recovery of money due to her as dower and it was to pay up this decree that the mortgage deed was executed. But when the mortgage deed was executed, the decree was satisfied and a fresh liability wag created under the mortgage. Learned Counsel for the respondent has relied on a decision of a learned Single Judge of this Court in Mohd. Shilli Khan v. Ish Datt Dihshit : AIR1939All398 . In that case the defendant who had purchased a motor lorry on credit had executed a mortgage deed in lieu of the unpaid price and the learned Single Judge was of opinion that as the original transaction of purchase on credit was not a loan, the subsequent mortgage deed was not to be held to be a transaction of loan within the meaning of that term under Section 2 (10) (a), U.P. Agriculturists' Relief Act. The same learned Judge, however, sitting in a Division Bench in Choudhury Padam Singh v. Kunwar Chandra Raj Saran Singh : AIR1945All144 held as follows:
The question, however, remains whether the execution of the pronote in suit was not in itself a transaction which was in substance a loan within the meaning of Section 2 (10) (a) and we think that the answer must be in the affirmative.
The learned Judges were of the opinion that it was not proved that the decree was passed on the basis of a loan, but they held that it did not matter as the promissory note in suit which was executed in satisfaction of the decree was in substance a loan. The same view can be supported by a Full Bench decision of this Court in Pratap Singh v. Guhari Lal A.I.R. (29) 1942 ALL. 50 F.B. In that case it was held by the Full Bench that a fresh transaction which wiped out certain old liabilities must be deemed to be a loan as it must be held that there was a notional payment on the earlier liability and the creation of a fresh liability under the document. We are, therefore, of the opinion that the view of the lower Court that the mortgage debt in question was not a loan was incorrect. In view, however, of the fact that the defendants had failed to prove that the plaintiff was a creditor-as a matter of fact they did not even press for an issue on the point-they are not entitled to get the benefit of chap. 5, U.P. Agriculturists' Relief Act. They would, however, be entitled to the benefit of Section 9, U.P. Debt Redemption Act, that is, instead of interest being calculated at 6 per cent. with annual rests, they would be liable to pay interest at the rate of 4 1/2 per cent. per annum. A Bench of this Court has held in another case, (Tula Ram v. Debi Datt : AIR1949All498 ), that under Section 9, the rate of interest is not interfered with. All that the section provides is that the amount due by the debtor shall not exceed the amount that would have been due if the rate of interest had been in the case of a secured loan 4 1/2 per cent. per annum.
7. The office will, therefore, prepare a fresh decree calculating the amount due under the mortgage at the rate given in the Debt Redemption Act. The fresh decree under Order 34, Rule 4, Civil P.C., will be prepared giving six months time to the judgment-debtors for redemption.
8. The parties will be entitled to receive and pay costs in proportion to their success and failure in both the Courts.