1. This is a plaintiffs' appeal and arises out of a suit under Section 33, U.P. Agriculturists' Relief Act (Local Act, 27 of 1934). The Court below has dismissed the suit. The transaction in respect of which the suit was brought is a usufructuary mortgage made on 11th March 1905 the principal mortgage money being Rs. 30,000. It appears that the mortgagee was put in possession of certain property which was mortgaged to him, with the stipulation that he was to enjoy the profits in lieu of interest on the mortgage money. It further appears that during the currency of the mortgage certain leases were executed by the mortgagee in favour of the mortgagor Kr. Digbijya Singh who alone by a partition in the mortgagor's family remained interested in the transaction as a mortgagor. One of these leases was executed on 29th June 1915 and Digbijya Singh agreed to pay to the mortgagee a sum of Rs. 1725 per annum on account of the profits of the property. When the term fixed in this lease expired another lease was given by the mortgagee to Digbijya Singh on 30th November 1925. The lease money was increased to Rs. 4870 per annum out of which it was agreed that a sum of Rs. 2100 would be paid by the mortgagor lessee to the mortgagee lessor every year and that the balance, Rs. 2770 would be paid by the mortgagor lessee as the Government revenue of the mortgaged property. The Court below has relied on the provisions of Section 77, T.P. Act, and has held that 'S. 33 does not apply to a case like the present.' Its view seems to be that no suit under Section 33, U.P. Agriculturists' Relief Act, can be filed in respect of a mortgage in which the agreement between the mortgagor and the mortgagee is that the profits of the property, possession over which was given to the mortgagee would be appropriated by the mortgagee in lieu of interest on the mortgage debt; in other words, that a suit under Section 33 of the Act cannot be permitted in the case of a usufructuary mortgage in which no rate of interest is specifically mentioned in the mortgage deed.
2. Dr. Katju for appellants has contended that the view taken by the Court below is wrong and has relied on the cases in Dharam Singh v. Bishan Sarup : AIR1938All1 , Wahid-uddin v. Makhan Lal : AIR1938All564 , Sheo Charan Lal v. Umrao Begum : AIR1938All611 and Ram Narain v. Chandrika Prasad (28) 25 AIR 1938 Oudh 156. These decisions on the face of them support the contention of the learned Counsel. Mr. Chandra Bhan Agarwala for the respondents has sought to distinguish the cases in Dharam Singh v. Bishan Sarup : AIR1938All1 , Wahid-uddin v. Makhan Lal : AIR1938All564 , and Ram Narain v. Chandrika Prasad (28) 25 AIR 1938 Oudh 156 on the ground that those were cases in which a certain rate of interest was specified in the mortgage deed. He concedes that the decision in Sheo Charan Lal v. Umrao Begum : AIR1938All611 is against him, but urges that the view taken in the decision in that case by the learned Single Judge is not correct and should not be accepted. We are unable to accept the contention of the learned Counsel for the respondents. In the first place we do not agree with him that the decisions in the three cases mentioned above which he seeks to distinguish are really distinguishable. The propositions of law which have been laid down in those cases are clearly applicable to those cases also in which no rate of interest is specified in the mortgage deed. 'Interest' is thus defined in Section 2(8), U.P. Agriculturists' Relief Act:
Interest includes the return to be made over and above what was actually lent, whether the came is charged or sought to be recovered specifically by way of interest or in the form of service or otherwise.
3. The profits of the property usufructuarily mortgaged which the mortgagee appropriates in lieu of interest are, in our opinion, clearly covered by this definition. In the second place we are in full agreement with the views expressed by Misra J., in 1938 ALJ 892.3 We have come to the conclusion therefore that the decision of the Court below that Section 33 of the Act does not apply to a case like the present is erroneous and must be set aside. Accordingly, we allow this appeal, set aside the decree of the Court below and remand the case to that Court with the direction that it shall readmit the case to its original number and shall proceed to hear and decide it according to law. The appellants are entitled to their costs in this Court. The costs in the Court below will abide the event. The court-fee paid on the memorandum of appeal shall be refunded to the appellants.