P.N. Mookerjee, J.
1. This appeal arises under the following circumstances:
2. The respondent brought a suit, purporting to be one under Section 36 of the Bengal Money-Lenders Act on the allegation inter alia that she borrowed Rs. 2,500 from the appellant, who was a money-lender, through her husband. The transaction, however, which was intended to be a mortgage, was made or effected in the form of a sale with a separate agreement of re-purchase or re-conveyance. As a matter of fact, there were two documents, a conveyance or sale-deed, and an agreement for re-conveyance and the learned trial Judge dismissed the suit on the preliminary ground that, having regard to the said two separate documents and in view, particularly, of the proviso to Section 58(c) of the Transfer of Property Act, the transaction cannot, in law, be regarded as a mortgage and, accordingly, the present suit on that basis would fail.
3. From this decree of dismissal, an appeal was taken by the plaintiff respondent to the lower appellate Court, which was eventually heard by the learned Additional District Judge, who held, relying, in particular, upon the decision of this Court, reported in Mahindra Nath Bose v. Manindralal Gupta, ILR (1956) 1 Cal 59, also reported briefly in AIR 1955 NUC (Cal) 2334, that the present suit would be maintainable, not on the footing of a mortgage, as no mortgage can, in law, be found on the basis of the said two documents, but on the footing of a 'loan in substance' so as to fall within the definition of loan' under Section 2(12) of the Bengal Money-Lenders Act, if the necessary conditions therefor, as laid down in the above decision, are found to be satisfied. In this view, he set aside the dismissal of the suit by the learned Munsif on the preliminary ground and sent the matter back to the trial court on remand for a fresh and further hearing in accordance with law in the light of the observations, made in his judgment.
4. From this appellate decision, the present miscellaneous appeal has been preferred by the defendant.
5. My attention has been drawn to the decision of the Supreme Court, reported in Chunchun Jha v. Ebadat Ali, : 1SCR174 and to the subsequent decisions of the same Court, substantially to the same effect, in Bhaskar Waman Joshi v. Shrinarayan Rambilas Agarwal, : 2SCR117 and Simrathmull v. Nanjalingiah Gowder, : AIR1963SC1182 for the purpose of emphasising that, in view of the above two separate documents, no question of a mortgage under the law, that is, under the Transfer of Property Act, would arise in the instant case. That, however, as we have said in our above judgment ILR (1956) 1 Cal 59, vide, in particular, pages 63-64, would not conclude the matter, so tar as the Bengal Money Lenders Act is concerned, and the learned Additional District Judge is right in treating our said decision as an authority for the proposition that even though invalid as a mortgage, the transaction may still be a 'loan in substance' so as to be a 'loan' within the meaning of Section 2(12) of the Bengal Money-Lenders Act, and, in that view, in remanding the case to the learned trial Judge for further hearing, as directed by him.
6. All I need say on the present occasion is that, on the above proposition, distinctly stated by us in our above judgment ILR (1956) 1 Cal 59, the above Supreme Court decisions and the series of High Court decisions on the same line Vide K. Venkata Subbarao v. B. Veeraswami, AIR 1946 Mad 456; Jaggarnath Singh v. Butta Kristo Ray, AIR 1947 Pat 345; R. Suryaprakasa Rao v. G. Venkataraju, : AIR1953Mad801 ; Abdul Faiz Fakhr v. Abdul Hafeez, AIR 1955 Hyd 177; Debnath Bhagat v. Bhoju Mondal, : AIR1958Pat371 ; Darshan Dass v. Ganga Bux, : AIR1962Pat53 and Swarnalata Mitra v. Durga Prosad, ILR (1955) 2 Cal 214 would all be distinguishable, as none of them was a case under the Bengal Money-Lenders Act, or, required or involved a decision on the footing of a 'loan' in the light of the definition Section 2(12) in the said Act, which includes, on its own terms, 'a loan in substance'. The substance theory, for the purpose of 'loan' under the Bengal Money-Lenders Act and underlying the same, underlines the distinction and makes all the difference and requires and compels a fundamentally different approach. In this view, I do not find any conflict between the above decision of this Court ILR (1956) 1 Cal 59 (supra) and the other decisions, cited hereinbefore by me, and no question of the said decision being overruled by the aforesaid subsequent Supreme Court decisions does at all arise.
7. I would, accordingly, dismiss this appeal but there will be no order for costs in thisCourt.