P.N. Mookerjee, J.
1. This is the defendants' second appeal, arising out of a suit, for inter alia and in subsance, redemption of a mortgage.
2. The suit property belonged to pro forma defendant No. 4 Sukhdas Bind. This pro forma defendant No. 4 mortgaged the said property to Rafikunnessa Bibi wife of defendant appellant No. 1, Md. Yusuf, and mother of the other two appellants, who were defendants Nos. 2 and 3 in the court below. The relative mortgage deed is dated December 6, 1949. It recites that it was for a consideration of Rs. 3,500/- which was stated to be the principal amount of the aforesaid mortgage in the said deed. Defendant No. 1, Who is appellant No. 1 before us and who was the husband of the original mortgagee Rafikunnessa Bibi, who has since died, appears to have been a tenant in possession of the suit property at the time of the aforesaid mortgage and ever since. The rent, payable for this tenancy, is Rs. 95/- per month, the tenancy running according to the English calendar.
3. While the above mortgage was subsisting, the suit property was sold by pro forma defendant No. 4 to the plaintiff by a kobala dated August 9, 1955, for a consideration of Rs. 5,000/- subject to the said mortgage.
4. The present suit was brought on September 3, 1955, upon the allegation, inter alia that the above mortgage, which was, in form and substance, a usufructuary mortgage, had been satisfied by the receipts, already obtained by the mortgagee from the suit property, and, as a matter of fact, it was the plaintiff's definite allegation, that the mortgagee had realised much more than her legal dues under the aforesaid transaction and, upon that footing, a claim was made that proper accounts should be taken for ascertaining the rights and liabilities of the parties in respect of the dues under the aforesaid mortgage, and, after a declaration that the said mortgage had been satisfied, possession should be made over to the plaintiff and excess receipts should be refunded. In the plaint, it was further claimed that, although, in the deed, a consideration of Rs. 3500/- had been mentioned as the mortgage money, as a matter of fact, only Rs. 3000/- Had been paid and the balance of Rs., 500/-. for which a pro-note was given by the mortgagee's husband to the mortgagor, was never paid as the said pronote remained unsatisfied The plaint also averred that, in view of the Bengal Money Lenders Act, upon the above principal of Rs. 3,000/-, the mortgagee could not claim anything more than double the said amount, that is, anything beyond Rs. 6,000/-, and, more than Rs. 12,000/- having been realised by her from the mortgaged properties, the aforesaid mortgagee's claim has been satisfied and the plaintiff was entitled to refund of the excess amount.
5. The suit was resisted by the defendants, the heirs of the Original mortgagee Rafikunnessa, who had died in the meantime, and their defence inter alia was that 'the Bengal Money Lenders Act would not apply to the instant case; that the consideration for the mortgage in suit was Rs. 3,500/- and not Rs. 3,000/- as stated in the plaint, and that the plaintiff's contention that more than Rs. 12,000/- had been realised from the mortgaged property was not correct. The defendant further claimed that, from the realisations from the mortgaged property, which they had a right to make under and by virtue of the above mortgage deed, they were entitled to claim deduction of payment of taxes, made in respect of the disputed property, and were also entitled to claim deduction of a sum of Rs. 6,000/- or thereabout on account of repairs, effected on the suit property.
6. On the above pleadings various issues were framed in the trial court. The learned Subordinate Judge, eventually, decreed the suit in a preliminary form by his judgment, dated February 27, 1960, holding, inter alia, that the proper consideration for the mortgage in suit was Rs. 3,000/-; that the suit would attract the provisions of the Bengal Money Lenders Act, under and in accordance with which, the mortgagees' dues had to be calculated and that the defendants' 'claim of deduction of taxes or on account of repairs had not been proved; and he directed accounts to be taken by a commissioner for the passing of a final decree in the suit. Before the learned Subordinate Judge, a point was also taken On behalf of the defendants, that under the terms of the mortgage deed in question, the mortgagee was not liable to account for her realisations from the mortgaged property and in 'that view, no account was demandable from her under the law. This contention was over-ruled by the learned Subordinate Judge, who held, inter alia, that, in view of (the express statute, the Bengal Money Lenders Act, a contract on the above line could not be enforced. The learned Subordinate Judge also over-ruled the defence contention that, under the terms of the above mortgage deed, the mortgagee had a right of pre-emption in respect of the suit property and accordingly, the sale to the plaintiff could not prevail against her said right and thepresent suit could not be maintained by theplaintiff.
7. Aggrieved by the above decision the defendants appealed to the learned District Judge, which appeal was, eventually, heard by the learned Additional District Judge, First Court, Alipore and, by the judgment, dated July 8, 1960, the said appeal was dismissed and the trial Courts decision on all the points was affirmed, though on slightly different reasonings on some of them. From this appellate decision, the present second appeal has been taken by the defendants.
8. In support of this appeal, two points were sought to be raised in the main, namely,(1) that the mortgagee's right of pre-emption ought: to have been given preference over the plaintiff's purchase and, on that footing, the present suit ought to have been dismissed; and(2) that, in any view in view of the express terms of the above mortgage deed, the plaintiff's claim for accounts should have been dismissed and the application of the Bengal Money Lenders Act should have been held excluded, so far as the instant case was concerned. It was also urged that on the evidence before the court and in view, particularly, of an admission, contained in the notice. Ext. D, which was given by the plaintiff's lawyer, the courts below; ought to have held that the principal amount under the disputed mortgage was Rs. 3,500/- and not Rs. 3,000/- and should have decreed accounts, if at all, only on that footing.
9. Mr. Das Gupta appearing for the appellants, very fairly conceded that, having regard to the scope of a second appeal, it was not open to him to question the other findings of fact, as made concurrently by the two courts below, and argued this appeal only on the above points of law, the last question also being, according to him one of law in view of the fact that an admission of the plaintiff on the point involved was ignored or not taken into account by the two courts below.
10. In our opinion this appeal should fall, subject only to a further provision being added to the judgments of the two courts below, indicating and limiting to some extent the scope of accounting between the parties. This we shall indicate in the course of our judgment.
11. On the first question, raised by Mr. Das Gupta, namely, that the plaintiff's suit should fail because of the express provision for pre-emption, as contained in the relevant mortgage deed, in favour of the mortgagee it is enough to say that it falls to be rejected not on the ground, given by the learned Subordinate Judge, that such claim was available only during the contractual (Myeyad (Oyada)) or period of the mortgage, namely, the period of 3 years from the date of the mortgage bond, and thus would not affect the plaintiff's purchase which was of the year 1955, that is, long beyond the said period, but on the ground that it was nothing more than a contract between the parties which for its enforcement, required a suit for specific performance, to be brought within the period of limitation prescribed by law, namely, a periodof three years from its breach, which period, in the instant case, has already expired. The enforcement of this right was not within the scope of this suit and, unless 'this right was specifically enforced by an appropriate proceeding for specific performance, it would not be taken into account even by way of defence in the instant suit. In such view, we would reject the appellants' contention that the plaintiff's present suit ought to have failed by reason of the said term of pre-emption in the relevant mortgage deed. It may be mentioned here that the learned Additional District Judge was also substantially of the same opinion but he did not express any definite view as to the subsistance or otherwise of the aforesaid right of the defendants and left the matter open for consideration in a future appropriate proceeding. That, however is not a complete or sufficient reason for rejecting the appellants above contention and when, on the admitted facts, the relevant period of limitation has expired it would hardly be proper that the matter should be left for further consideration after the instant proceeding. We would accordingly, hold that the defendants' claim for pre-emption, if any, under the above mortgage deed, no longer subsists and no defence on the merits, can be taken on the basis of the same against the plaintiff's present claim.
12. On the second question namely, whether, in view of the express agreement between the parties in the relevant mortgage deed, that the mortgagee would not be liable to account, the plaintiff's claim for accounts should be dismissed in spite of the Bengal Money Lenders Act or, whether the latter Act should be held to apply and to override the said contract, our attention was drawn to the decision of the Supreme Court in the case of Ramdhan Puri v. Bankey Bihari Saran, : 1SCR1085 , where their Lordships had to consider the effect of such a clause upon the liability of a mortgagee in possession under the Transfer of Property Act. In that decision their Lordships of the Supreme Court held that such a contract would prevail over the provisions for liability, as indicated in the said statute, but that was clearly on the ground that Section 77 of the Transfer of Property Act expressly made this provision for the liability of the mortgagee in possession subject to any contract between the parties. The Bengal Money Lenders Act, on the other hand, abrogates such contracts and it is the main purpose of this statute to relieve parties against contracts, inconsistent with its provisions. It is true, as pointed out by Mr. Das Gupta that Section 36 of the aforesaid Act, under which, 'in the instant suit the disputed mortgage transaction has been re-opened for the purpose of giving relief to the plaintiff-mortgagor in the matter of accounts in respect of his liabilities for the mortgage loan in question does not expressly mention or profess to mention that contracts to the contrary are overridden, as the relevant non obstaute clause in that section is merely in this form:
'notwithstanding anything contained in any law for the time being in force............'
13. That, however, is of no material consequence, as, apart from all other considerations, it is perfectly clear that the season expressly confers upon the court power 'to release the borrower of all liability in excess of the limits in Clauses (1) and (2) of Section 30' of the Act and the said Section 30 in its non-obstante clause, expressly overrides, inter alia, all agreements or contracts to the contrary. Reading, then, the two provisions together it is reasonably beyond dispute that contracts, seeking to impose liabilities beyond the above statutory limits, would not prevail, when the Court proceeds to reopen transactions and take accounts' between the parties under Section 36 and the only exception to this power would be as provided in the two provisos, annexed thereto. Admittedly, these provisos have no application to the instant case, nor can the transaction in suit be brought within the exceptions to the definition of loan', as mentioned in the definition Section 2(12) of the said Act. In such circumstances, it is idle to contend that the Bengal Money Lender Act would not apply to the instant suit and would not limit the liabilities of the borrower or govern the relations between the parties. In this view, we would over-rule the appellants' contention that the Bengal Money Lenders Act has no application to this case and the defendants could not be called upon to account in the in stant suit.
14. Lastly comes the question whether the concurrent decision of the two courts below that, notwithstanding the recital of Rs. 3,500/-as consideration money in the relevant mortgage deed, the real consideration for the said transaction was Rs. 3,000/-. On this point, the decisions of the two courts below are based on a consideration of the evidence in this case and, prima facie, that determination would not be challengeable in second appeal. Mr. Das Gupta, however contends that there is, on the record, the notice of demand from the plaintiffs' own lawyer, which was mentioned in the plaint itself and which was marked as Ext. D. wherein the consideration of the suit mortgage was stated to be Rs. 3,500/-. It is true that, in the said notice, such a statement occurs, but' the difficulty in the appellants' way in this matter is caused by, inter alia, Section 145 of the Indian Evidence Act. The above statement in the notice (Ext. D) can be relied upon by the appellants only as an admission on the part of the plaintiff through her lawyer, who gave the said demand notice. The said lawyer was examined in the case as a witness (P. W. 2) on behalf of the plaintiff. His attention however, was not drawn to the statement, to which his evidence in court was opposed and which is now being sought to be used by the appellants for contradicting the said evidence. The lawyer as the record shows, was examined on May 2, 1958. The notice (Ext. D). however, does not appear to have been produced before the court by the defendants prior to May 20, 1958. Apart from the fact that there is no explanation on record as to this late production of this document, it is an admitted fact that the provisions of Section 145 of the Indian Evidence Act were not complied with in regard to thesame so far as it purported to contradict the evidence of the lawyer witness in the suit or of the plaintiff, whose attention also was not drawn to the said notice even though She was recalled and further examined on May 21, 1958. We do not think that, in such circumstances any reliance can or ought to be placed upon the said notice for the above purpose of contradiction of the evidence, given on the plaintiff's side. In this view, we would hold that the concurrent findings of the two courts below on this question cannot be assailed in this second appeal.
15. In the above view, all the contentions, urged in support of this appeal, fail but before we part with this case, in order to reduce the chances of complication in the pending accounts proceedings, we would broadly indicate the line, on which the said accounting has to be made.
16. The proceeding should be a simple one. On the findings, made above, the principal amount of the mortgage in suit would be Rs. 3,000/-. Under the Bengal Money Lenders Act, the mortgagee would be entitled to interest at the rate of 3 per cent per annum simple. The mortgagee would be liable to account, notwithstanding the term to the contrary in the mortgage deed, as held above by us, but he would be liable to account only for what might and ought to have been received by him as mortgagee. The property, as we have said above, at the time of the aforesaid mortgage and ever since, has been in possession of the original (deceased) mortgagee's husband (who is now one of her representatives and is defendant appellant No. 1 before us) as tenant. The mortgagor,--and so the mortgagee too,--at the time of the said mortgage, would have been entitled only to realise rent from this tenant and could have had no right to any other realisation. In such circumstances, the mortgagee cannot be made liable) for any amount beyond the said rent for collections from the mortgaged property. The rate of this rent, as mentioned above, is Rs. 95/- per month. About the taxes, there is no satisfactory evidence of payment of the same. If however, the defendants be able to furnish any proof, before the commissioner, of payment of taxes in respect of the disputed property during the period of their or their predecessor's possession, they would be entitled to have deduction in respect of the same out of their above collections. In short, the accounting would be made as follows:
17. That the mortgagee's dues would be calculated on the footing of a principal amount of Rs. 3,000/- with interest at the rate of 8 per cent per annum, subject to a liability of Rs. 95/-per month on account of realisations from the disputed property, less rents and taxes, if any, paid by the mortgagee or her representatives during the period of their possession, upto the date of such accounting.
18. Subject to the above further direction in the matter of accounting, the instant appeal fails and it is dismissed.
19. There will be no order as to costs of this appeal.
20. As the present suit was instituted, as far back as 1955 and having regard to the nature of this suit, we would direct that the pending accounts proceeding and the disposal of the suit be expedited.
21. Laik, J. : I agree.