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Haji Sheikh Wahid-uddIn Vs. B. Makhan Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All564
AppellantHaji Sheikh Wahid-uddin
RespondentB. Makhan Lal and anr.
Excerpt:
.....of the learned counsel for the respondents is well..........money and interest of which payment is secured for the time being are called the mortgage money. mortgages may be of several kinds, one of them being a usufructuary mortgage which is thus defined in clause (d) of the section:where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage money, and to receive the rents and profits accruing from the property, or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgage money, the transaction is called a usufructuary mortgage, and the mortgagee.....
Judgment:

Verma, J.

1. This is an appeal by the plaintiff in a suit brought by him under Section 33(2), U.P. Agriculturists' Relief Act, No. 27 of 1934, praying

that the amount payable by the plaintiff to the defendants under the document dated 4th February 1982, executed by the plaintiff in favour of the defendants for Rs. 1,00,000 may be declared after deducting the amount paid and fixing the rate of interest.

2. The plaintiff, appellant alleged that he was an 'agriculturist' within the meaning of the Act; that he was an old resident of the United Provinces, and was entitled to the relief claimed; that he had executed a document for Rs. 1,00,000 in favour of the defendants on 4th February 1932; that the major portion of the property hypothecated under the said document lay in the United Provinces of Agra and Oudh, but at the instance of the defendants some property situate in the Province of Delhi was also mentioned in the document simply with the view that the document might be registered in Delhi; that the rate of interest agreed upon and mentioned in the document, was As. 12-6 per cent, per mensem compoundable six-monthly; that in lieu of the interest aforesaid a lease was executed by the plaintiff in favour of the defendants on 4th February 1932; that as a matter of fact the two documents were parts of the same transaction and the object was to secure the payment of the interest; that the plaintiff had made payments towards principal and interest, the amount of which was far in excess of the interest payable under the provisions of the U.P. Agriculturists' Relief Act; that the surplus should be set off against the principal; and that the plaintiff was entitled to the declaration prayed for.

3. The defendants pleaded that the plaintiff was not an 'agriculturist' within the meaning of that word in the Act; that the document executed by the plaintiff in their favour on 4th February 1932, was a deed of usufructuary mortgage; that the property situate in the Province of Delhi was of considerable value and had not been entered in the document fictitiously simply with the object of securing registration in that province; that it was agreed upon between the parties that the profits, which the property was capable of yielding, would amount to such a sum as would give the mortgagees a return which was equal to As. 12.6 per cent, per mensem compoundable six-monthly on the amount advanced; that the defendants, usufructuary mortgagees, then gave a lease of the property to the plaintiff with the stipulation that the latter would pay a certain sum of money periodically to the lessors; that the relationship of lessor and lessee was thereby created between the parties; that the payments made by the plaintiff have all been duly credited; that the Agriculturists' Relief Act did not apply to the transaction in question; and that the plaintiff was not entitled to the relief claimed.

4. The Court below has held that the plaintiff was an 'agriculturist'; that the suit was cognizable by it, but that the transaction in question was a usufructuary mortgage; and that therefore the plaintiff was not a 'debtor,' and so was not entitled to maintain the suit, as in addition to being an 'agriculturist' a person must also be a 'debtor' in order to have the right to bring a suit under Section 33 of the Act. The learned Counsel for the appellant has urged before us (1) that the Court below has erred in holding that the transaction in question was a usufructuary mortgage and should have held that it was an anomalous mortgage, and (2) that in any case, even if the transaction was a usufructuary mortgage, pure and simple, the view that the mortgagor was not a 'debtor' of the mortgagee is erroneous. We are of opinion that both these contentions are well founded. We take up the second point first. A mortgage as defined in Section 58, T.P. Act, is

a transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability.

5. Thus the essence of the transaction is a loan. The person who executes the mortgage deed takes an advance of money or, to put it in other words, takes a loan from the person in whose favour the deed is executed. The transfer of the interest in the immovable property is only for the purpose of securing the payment of the money advanced by way of loan. The Section further provides that the principal money and interest of which payment is secured for the time being are called the mortgage money. Mortgages may be of several kinds, one of them being a usufructuary mortgage which is thus defined in Clause (d) of the Section:

Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage money, and to receive the rents and profits accruing from the property, or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgage money, the transaction is called a usufructuary mortgage, and the mortgagee a usufructuary mortgagee.

6. Thus a usufructuary mortgage also is a transfer of an interest in immovable property for the purpose of securing the payment of money advanced, and the object of giving possession to the mortgagee and authorizing him to retain possession is to provide for the payment of interest or principal or both. In our judgment the transaction, by taking the form of a usufructuary mortgage, does not cease to be one of loan in its essence. The U.P. Agriculturists' Relief Act does not define 'debt' and 'debtor', but it does define 'loan', that definition being:

'Loan' means an advance to an agriculturist, whether of money or in kind, and shall include any transaction which is in substance a loan, but shall not include:

(i) a loan advanced by the Local Government or by any Municipal District or Cantonment Board authorized by the Local Government to advance loans, or by a Co-operative Society;

(ii) except for the purposes of Sections 7, 8, 33(1), 38, 36 and 39(1), (3) and (4), small loans not exceeding Rs. 20 repayable within a year in fixed equated instalments the total of which does not exceed the principal by more than 10 or 20 per cent., according as the instalments are spread over a period of less than six months or more than six months, provided that no further interest is charged in addition to fixed equated instalments; and

(iii) a loan of agricultural produce repayable at the next harvest with not more than one-quarter of the quantity of the said produce by way of interest.

Explanation. - A. loan advanced as one transaction shall for the purpose of Sub-clause (ii) be deemed to be one loan, even though it is evidenced by several separate documents or by separate entries in a document : Section 2(10)(a).

7. It will be noticed that the Legislature mentions three exceptions, but a usufructuary mortgage is not one of them. We are of opinion that the mortgage money advanced by a usufructuary mortgagee also is clearly within this definition. The Act defines 'creditor' in Sub-section (7) of Section 2. The Legislature, having defined 'loan,' evidently did not think it necessary to define 'debt' and 'debtor.' In Wharton's Law Lexicon, 'debt' is defined as 'a sum of money due from one person to another,' and debtor' as 'he that owes some money to another.' We are clearly of opinion that a person borrowing a loan and giving a usufructuary mortgage in lieu thereof owes money to the mortgagee and incurs a 'debt' and is a 'debtor' of his mortgagee. The Court below has taken the view that if the creditor is not entitled to sue for the recovery of his money at any time he likes, the person to whom he has advanced the loan is not a 'debtor' in the eye of law. In our judgment this view is not correct. All that happens in the case of a usufructuary mortgage is that by the peculiar nature of the security given for the payment of the money advanced, the mortgagee is not entitled to sue for the mortgage, money except in certain contingencies provided for in the Transfer of Property Act. But the delivery of possession is only a mode of payment of the interest, or the principal, or both. Even where profits are agreed upon to be equal to the interest on the advance made, the liability to repay the principal amount is present. If the borrower does not repay the money borrowed within the period of limitation, the lender becomes the owner of the property which has been in his possession as security for his loan, and that is tantamount to the repayment of the money which he had advanced.

8. In addition to what has been said above, there is this further point in this case that the transaction in question is not in our opinion a usufructuary mortgage pure and simple. The mortgagor says in the mortgage deed : 'I have now mortgaged with possession and pledged the entire property.... 'There are various other portions of the deed which also are not reconcilable with a usufructuary mortgage pure and simple, for example, Clauses (iii), (x) and (xi). We are therefore of opinion that the deciaion of the Court below cannot be supported on the ground on which it rests. The learned Counsel for the respondents however has urged another ground in support of the dismissal of the suit. His contention is that a portion of the property mortgaged under the deed in question being admittedly situate in another province, viz. the province of Delhi, the provisions of the U.P. Agriculturists' Relief Act, cannot be applicable to that portion of the mortgaged property and as the mortgage is indivisible, this suit under the provisions of Section 33, U.P. Agriculturists' Relief Act is not maintainable.

9. The learned Counsel has shown by a comparison of the list of the mortgaged property given in the deed, dated 4th February 1932, and the Schedule appended to the Delhi Laws Act (Act 7 of 1915), that Items 3 and 5 to 9 of the mortgage deed are also in the Delhi Province. Thus, out of the ten items mortgaged, items 1 to 9 are situate in the Province of Delhi, and were so situate on 4th February 1932. It may be noted that item 3 of the mortgage deed is wrongly printed as Saholi in our paper-book, the correct name being Sabauli. There are slight errors in the printing of the names of some of the other items also.

10. Learned Counsel for the respondents urges that the local Legislature of the United Provinces of Agra and Oudh had no power to make any laws affecting lands situate outside the territories for the time being constituting the United Provinces. The U.P. Agriculturists' Relief Act was passed in the year 1934 and came into force in 1935. Thus the question that arises for consideration is whether a mortgagor owning property in the United Provinces as well as in another province, who has mortgaged properties situate in both the provinces under one deed, in lieu of a single advance, is entitled to take advantage of the provisions of Section 33, Agriculturists' Relief Act passed by the local Legislature of the United Provinces. It is to our minds clear, that the provisions of the U.P. Agriculturists' Relief Act do affect the rights of mortgagees, who under the Transfer of Property Act are transferees of an interest in immovable property in the lands mortgaged. We are of opinion that the contention of the learned Counsel for the respondents is well founded. It seems to us that the point that the laws made by the local Legislature of one province cannot affect rights in lands situate outside the territories for the time being constituting that province is clear.

11. The learned Counsel for the respondents has referred to Section 80-A, Sub-section (1), Government of India Act of 1919, which immediately preceded the Government of India Act, 1935. The learned Counsel for the appellant has in reply referred to Sub-section (3) of that Section and has contended that all that Section 33, United Provinces Agriculturists' Relief Act, does is to make a provision which affects rules of procedure. We find it difficult to follow this argument, for the Act affects, and is intended to affect, substantive rights. In our opinion this argument of the learned Counsel for the appellant has no force. The learned Counsel for the appellant further seems to think that Sub-section (3) of Section 80-A, Government of India Act, mentioned above, means that if the local Legislature of a province has obtained the previous sanction of the Governor-General, it can make laws of the kind mentioned in Clause (a) to (ii) of the sub-section so as to affect rights and properties not only within the boundaries of that province but also outside those boundaries. In our judgment this is not correct. The effect of Sub-section (3) is that without the previous sanction of the Governor-General, or at any rate his subsequent assent as mentioned in the proviso to the sub-section, the local Legislature of a province cannot validly make any such laws even for its own territories, and the previous sanction, or the subsequent assent, of the Governor-General in Council only makes such laws valid and effective within the territories of that province.

12. Sir Syed Wazir Hasan, who appeared for the appellant, represented to the Court when the case was first heard that he did not expect that this point would be raised on behalf of the respondents and so was not fully prepared to argue it and requested that the case be adjourned for a few days. We acceded to the request and at the resumed hearing further arguments on behalf of the appellant were addressed to us by Mr. P.L. Banerji as Sir Syed Wazir Hasan has had to leave Allahabad. Mr. Banerji has argued that there was no bar to the passing of a declaratory decree as contemplated by Section 33, Agriculturists' Relief Act. His contention is that the mortgagee, if and when he desires to realize his money, should bring a suit on the mortgage in the Court in Delhi, obtain a decree and execute it there and try to realize the whole amount due to him from the property situated in Delhi Province, and that if any balance is left over after the entire property in that province had been sold, he should then proceed against the property situated in this province and that when he does so he would not be entitled to realize from this property more than the amount declared in this suit under Section 33, Agriculturists' Relief Act. We do not agree with this contention. The respondents advanced the loan in consideration of the security of the entire mortgaged property being given. The mortgage is indivisible and no apportionment of the mortgage money can be made. The amount due under the deed is a charge on the entire property situate in both the provinces. Sub-section (2) of Section 33, Agriculturists' Relief Act, provides that Ch. 4 of the Act and the Usurious Loans Act shall be followed. In other words, the interest is to be reduced, accounts have to be taken and then a decree has to be passed. It is clear therefore that any decree passed under Section 33 of the Act will affect rights in the property in Delhi. That in our opinion is not permissible. For the reasons given above we hold that the suit was not maintainable. We accordingly affirm the decree of the Court below dismissing the suit, and dismiss this appeal with costs.


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