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Narendra Bhoi and ors. Vs. Bhagaban Das - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa
Decided On
Case NumberSecond Appeal No. 458 of 1948
Judge
Reported inAIR1951Ori147
ActsDebt Law; Orissa Money Lenders Act, 1939 - Sections 17; Transfer of Property Act, 1882 - Sections 58 and 98
AppellantNarendra Bhoi and ors.
RespondentBhagaban Das
Appellant AdvocateM.S. Rao, Adv.
Respondent AdvocateM.M. Das, Adv.
DispositionAppeal dismissed
Excerpt:
.....md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - if the provision relating to the delivery of possession of the properties were absent from these two documents, it may well be that they will satisfy all the requirements of a simple mortgage. in the case before me i find that the documents are a combination of the requirements of a simple mortgage as well as an usufructuary mortgage and, in these circumstances, they must be held to be composite documents, that is to say, they are neither simple mortgages nor usufructuary mortgages pure and simple. it does not, in my opinion,..........not tenable in view of the classification of the various kinds of mortgages made in schedule 8. a simple mortgage, for instance, is defined as a mortgage in which the mortgagor binds himself personally to pay the mortgage money and agrees to have the mortgaged property sold for realisation of the mortgage amount. if the provision relating to the delivery of possession of the properties were absent from these two documents, it may well be that they will satisfy all the requirements of a simple mortgage. the act further defines 'anomalous mortgage' as a mortgage which is neither a simple mortgage nor a usufructuary mortgage. in the case before me i find that the documents are a combination of the requirements of a simple mortgage as well as an usufructuary mortgage and, in these.....
Judgment:

Panigrahi, J.

1. The plaintiff raised the suit for the recovery of mortgage moneys advanced under two mortgage deeds, viz. Ex. 2 dated 12-5-23 and Ex. 1 dated 1-4-30 executed by the defendant, for Rs. 25/- and Rs. 100/- respectively. The lands mortgaged were plot No. 230 and plots' Nos. 1016 to 1018. The documents describe themselves as Dakhal Bandak and recite that the properties are put in possession of the mortgagee in lieu of interest and that the mortgagor shall not claim an account of the rents and profits issuing out of the lands, nor shall the mortgagee demand any interest for the sum lent. They further recite that if the principal amount is paid within the period fixed for redemption, the mortgaged properties shall stand redeemed. Under the first document the period fixed for redemption was nine years, while under the other document it was one year. The recital on which there has been controversy between the parties is as follows:

'If you are dispossessed you can file a suit for the principal amount, together with interest at Rs. 3-2-0 per cent per month and in execution of the decree, bring the mortgage properties to sale. If that is insufficient you will realise the same by attachment and sale of my other immoveable and moveable properties'.

2. It is admitted that the mortgagee was in possession under these two deeds till he was dispossessed by the defendants in 1946. This suit was, therefore, filed for recovery of the principal amount, together with interest.

3. The learned Munsif granted a simple money decree to the plaintiff for Rs. 122/- with proportionate costs. On appeal the learned Subordinate Judge, while upholding the findings of the Munsif reduced the amount which the plaintiff was entitled to, to Rs. 91-6-6. In the view of the Courts below the plaintiff was not entitled to a mortgage decree.

4. In second appeal, the point that has very strenuously been urged before me by Mr. Rao, on behalf of the appellant, is that the documents (Exs. 1 and 2) are usufructuary mortgage bonds and are statutorily discharged under Schedule 7, Orissa Moneylenders Act. This section provides:

'Notwithstanding anything to the contrary contained in any other law or anything having the force of law or in any contract, an usufructuary mortgage executed before or after the commencement of this Act shall, unless discharged previously, be deemed to stand discharged after the expiration of 15 years from the date of the mortgage'.

In this case the mortgagee has admittedly been in possession for more than 15 years. If therefore, on a proper interpretation of the contents, the documents are held to be usufructuary mortgages, there can be no doubt that the mortage debt shall be deemed to have been discharged by reason of the plaintiff's possession for 15 years. The learned Subordinate Judge, however, held that the documents were anomalous mortgages and not usufructuary mortgages pure and simple. In both the documents there is a personal covenant to pay the mortgage amount by which the mortgagors undertook to pay the amount through the sale of their other properties. In both the documents, again, the mortgagor says that the mortgagor shall be primarily liable for the mortgage debt. In a usufructuary mortgage, as defined in Schedule 8(d) T.P. Act, all that the mortgagor does is to authorize the mortgagee to take possession of the mortgaged properties until the entire amount of mortgage is paid off and to receive the rents and profits accruing from the land either in lieu of interest or in payment of the mortgage money. The expression 'usufructuary mortgage' used in Schedule 7 is to be understood in the light of the definition of that expression occurring in Schedule 8 (d), T.P. Act. There can be no doubt that the deeds in question contain something more than what is required to create a usufructuary mortgage. Mr. Rao, however, contends that the documents are substantially usufructuary mortgages though they contain some additional provisions and that the insertion of these additional provisions does not detract from the character of the documents as usufructuary mortgages. This argument, however attractive, is not tenable in view of the classification of the various kinds of mortgages made in Schedule 8. A simple mortgage, for instance, is defined as a mortgage in which the mortgagor binds himself personally to pay the mortgage money and agrees to have the mortgaged property sold for realisation of the mortgage amount. If the provision relating to the delivery of possession of the properties were absent from these two documents, it may well be that they will satisfy all the requirements of a simple mortgage. The Act further defines 'anomalous mortgage' as a mortgage which is neither a simple mortgage nor a usufructuary mortgage. In the case before me I find that the documents are a combination of the requirements of a simple mortgage as well as an usufructuary mortgage and, in these circumstances, they must be held to be composite documents, that is to say, they are neither simple mortgages nor usufructuary mortgages pure and simple. The learned Subordinate Judge was therefore right in holding that Exs. 1 and 2 can only be described as anomalous mortgages and, as such, they are outside the purview of Schedule 7, Orissa Moneylenders Act. In using the expression 'usufructuary mortgage' in Schedule 7 the Legislature must be taken to have intended that other kinds of possession of a mortgagee were not going to be affected. If mere possession were to be the test then a mortgage by conditional sale or even an English mortgage would equally be affected lay Schedule 7, Orissa Moneylenders' Act. It does not, in my opinion, stand to reason that the Legislature should use an expression to denote a particular kind of mortgage with possession, when the meaning of that very expression is well understood as covering other kinds of mortgages with possession. Nothing would have been simpler for the Legisature than to say that a mortgage with possession would be discharged after fifteen years of continuous possession by the mortgagee. As at present advised, I am unable to accede to the contention of Mr. Rao that all kinds of mortgages with possession are governed by Schedule 7, Orissa Moneylenders Act.

5. The judgment under appeal is therefore confirmed and the appeal dismissed. There shall be no order as to costs.


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