Hari Narain Singh v. State of Bihar — 1981 DIGILAW 65 (PAT)

JUDGMENT : Lalit Mohan Sharma, J. By this writ application, the petitioner has challenged the ORDER :in Annexure 4' passed by the Commissioner, Patna (respondent No. 2) in a proceeding under the provisions of the Bihar Money Lenders Act, 1974 (hereinafter referred to as 'the Act'). An application by Smt. Ram Kumari Devi, since dead, mother of the present respondents 4 to 9 who has been described as the respondents 2nd set was under section 12 of the Act alleging that the land fully described in paragraph 3 of the writ application had been given in usufructuary mortgage to the petitioner on the 19th December, 1967, that is, more than seven years earlier and by virtue of the provisions of the section, all dues in respect of the mortgage must be deemed to have been fully satisfied and the mortgage redeemed. She was, therefore, entitled to recovery of possession. The petitioner resisted the application inter alia on the ground that the mortgage in question was not usufructuary in nature so as to attract the provisions of section 12 and the application was, therefore, not maintainable. The Deputy Commissioner Land Reforms, the Collector under the Act (respondent no. 3) who heard the application rejected the same by his ORDER :in Annexure 3'. The respondent second set filed a revision application under section 46 of the Act before the Commissioner (respondent no. 2) who reversed the decision of the respondent no. 3. The petitioner has now come to this court for quashing the Commissioner's ORDER :under Articles 226 and 227 of the Constitution. 2. In this show cause before the respondent no. 3 the petitioner described the mortgage as anomalous and stated that the applicant Raj Kumari Devi had purchased the land in a court auction and her claim was in dispute. In this background the petitioner entered into the transaction in question with her and it was agreed that the petitioner should improve the land and make arrangements for irrigation. Out of the total amount of Rs. 12000/- for which the mortgage was executed, a sum of Rs. 12000/- was left in deposit. According to the terms, the petitioner had to spend additional money, if so required, which the mortgagor agreed to pay off later. The improvements ultimately cost the petitioner a sum of Rs. 8000/- and this expenditure was incurred with the concurrence of the mortgagor. 12000/- for which the mortgage was executed, a sum of Rs. 12000/- was left in deposit. According to the terms, the petitioner had to spend additional money, if so required, which the mortgagor agreed to pay off later. The improvements ultimately cost the petitioner a sum of Rs. 8000/- and this expenditure was incurred with the concurrence of the mortgagor. In this way, she was liable to pay a further sum of Rs. 6000/-. In 1974 there was a further agreement with the parties for transfer of the mortgagor's title to the petitioner and a sum of Rs. 500/- was paid by the petitioner by way of advance. The sale deed which according to the agreement should have been executed by 30.6.76 was not executed on account of the mortgagor applicants refusal to do so. 3. The petitioner filed affidavit of half a dozen persons in proof of his plea. The applicant mortgagor did not lead any evidence. The respondent no. 3 accepted the statements made in the affidavit as correct and interpreted the mortgage as being not a usufructuary mortgage. In his ORDER :he also referred to a title suit filed by the petitioner against the applicant for specific performance of contract of sale. The application was dismissed. 4. On appeal, the respondent second set, the heirs of the original applicant, contended that the possession of the petitioner over the land is admitted and, therefore, he was entitled to the relief claimed. If the petitioner was entitled to any money on any account, he should have gone to the civil court. The Commissioner agreed with them, allowed the application and directed the Land Reforms Deputy Collector to take further action for delivery of possession. 5. If the petitioner was entitled to any money on any account, he should have gone to the civil court. The Commissioner agreed with them, allowed the application and directed the Land Reforms Deputy Collector to take further action for delivery of possession. 5. The relevant portion of section 12 of the Act reads as follows :- "Usufructuary mortgages and their redemption notwithstanding anything to the contrary contained in any law or anything having the force of law or in any agreement the principal amount and all dues in respect of a usufructuary mortgage relating to any agricultural land whether executed before or after the commencement of this Act shall be deemed to have been wholly redeemed on expiry of a period of seven years from the date of the execution of the mortgage bond in respect of such land and the mortgagor shall be entitled to recover possession of the mortgaged land in the manner prescribed under the rules. The section refers to a usufructuary mortgage with reference to which redemption by fiction is contemplated. Mr. Ghose contended that by reason of the non obstante clause, it must be held that where ever a mortgagee is put in possession of the mortgaged land, the mortgagor would be entitled to the benefits of the section. I do not find any merit in the contention. The word "notwithstanding" is not connected with the expression "usufructuary mortgage." The provisions of the section have to prevail over any contrary statutory provisions or law or agreement and this part is not relevant for the present question. 6. Proceeding further, the section mentions the right of a mortgagor to automatic redemption, but that is confined only to cases of usufructuary mortgage. By the express language used therein, the section must be confined to usufructuary mortgagees from their rights which existed earlier. It is a well established and recognised rule of interpretation that statutes, if possible, should be interpreted so as to respect vested rights. The provisions should not be construed so as to take away rights which already existed earlier unless there are plain words indicating such intention. In cases where the language used is not express and unambiguous, it cannot be construed so as to take away rights by implication. The section clearly indicates that it is confined to usufructuary mortgages only. 7. The provisions should not be construed so as to take away rights which already existed earlier unless there are plain words indicating such intention. In cases where the language used is not express and unambiguous, it cannot be construed so as to take away rights by implication. The section clearly indicates that it is confined to usufructuary mortgages only. 7. The only question next arises as to whether the mortgage affected by the applicant in the present case was usufructuary. A copy of the mortgage document has been annexed to the writ application as Annexure 1', and the counsel for the parties have taken us through it. A portion of the document has been translated from Hindi into English by the High Court at the request of the petitioner. However, we went through the entire document with the learned counsel for the parties. 8. The mortgage document has been described in the third paragraph as rehan with possession. As pleaded by the petitioner, the document recites that a sum of Rs. 2000/- had been left with him for making arrangements for irrigation and other improvements with a stipulation that he would have to render accounts to the applicant. If any money was left unexpended, the same would be payable to her and, on the other hand, if it cost him more, she would reimburse. The due date of redemption was fixed in Jeth 1382 fasli, that is, 1975. In case of default, in payment, it was provided that the petitioner would be entitled either to continue in possession of the and or to realise his total dues from the applicant. Her personal liability' to pay the (sic) was also mentioned. Some of the characteristics of a usufructuary mortgage are present in the case before me, but due to further terms, referred to above, which are not consistent with a usufructuary mortgage the document in question must be interpreted as anomalous one. A usufructuary mortgagee does not incur any personal liability to the debt and there being no personal liability to pay, the remedies by way of foreclosure or sale not open to the mortgagee. In the present case, I find that the petitioner was given a choice, of suing for the mortgage money as also for any other monetary claim arising out of accounting made under the term of the deed. This renders the mortgage as non-usufructuary. In the present case, I find that the petitioner was given a choice, of suing for the mortgage money as also for any other monetary claim arising out of accounting made under the term of the deed. This renders the mortgage as non-usufructuary. Pointing out that the decision in Sheikh Mohammad Abdullah v. Mohammad Yasin (A.I.R. 1933 Lahore, 151) relied upon by the respondent before us had been overruled by a Full Bench of the same Court, the learned counsel for the petitioner placed reliance on the decision in Mohammad Saeed v. Abdul Alim (A.I.R. 1947 Lahore, 40 F.B.). Dealing with a mortgage similar in nature as in the present case, it was held by the Full Bench that it is a settled proposition of law that if a deed of mortgage contains personal covenant to pay the principal mortgage debt or interest by the mortgagor, such a covenant implies the right of sale unless there is some specific term to the contrary. After considering the terms of the mortgage deed in that case, it was further held that the transaction was neither purely usufructuary mortgage nor a simple mortgage but was an anomalous mortgage. The Assam High Court in Rahimuddin Choudhary v. Nayan Chand (A.I.R. 1950 Assam 18) held that where there is an express undertaking to pay money contained in a deed of mortgage, even though the mortgage is with possession, it is not an out and out usufructuary mortgage. It partakes of the character of a simple mortgage also and is thus converted into an anomalous mortgage. The provision of a personal covenant to pay the money, side by side with the right of a mortgagee to enjoy and possess the lands was emphasised as leading to the conclusion that the mortgage could not be treated as usufructuary. I am in respectful agreement with this view. Besides, the petitioner was required by the terms of the document to invest additional money for the improvement of the land and this he had done. According to the exparte evidence relied upon in Annexure 3, he had spent a sum of Rs. 8000/- he is entitled to (sic) reversed by the petitioner's claim to get a sale deed executed in pursuance of a contract by observing that the petitioner can enforce these rights by filing a suit or suits. His interpretation of the document does not appear to be correct. 8000/- he is entitled to (sic) reversed by the petitioner's claim to get a sale deed executed in pursuance of a contract by observing that the petitioner can enforce these rights by filing a suit or suits. His interpretation of the document does not appear to be correct. These terms emphasise the anomalous character of the deed and I hold that the transaction was not a usufructuary mortgage and consequently the section 12 of the Act has no application whatsoever. 9. The learned counsel for the contesting respondent referred to the decisions in A.I.R. 1963 Supreme Court, 1041, 1976 Bihar Bar Council Journal, 101, 1980 Bihar Bar Council Journal, 54, (F.B) and 1980 Bihar Bar Council Journal, 218. The mortgage : admittedly has not ceased to exist except according to the case of the respondents by reason of section 12 of the Act which does not apply. So the cited decisions do not appear to be relevant. 10. As an alternative argument, Mr. Ghose contended that the mortgage deed (Annexure 1) should be interpreted to be usufructuary mortgage by excluding the terms which are inconsistent to this construction and thereafter those terms should be held to be illegal and ineffective in view of the non-obstante clause in the section. This argument also is devoid of any merit. There is no reason to truncate the document in the manner suggested. Further, the terms are so intermingled that it is not possible, to separate them. The document cannot be interpreted as suggested by the respondents on the sole ground that it describes the transaction the terms thereof have to be analysed and interpreted. This argument also therefore fails. 11. For the reasons mentioned above the ORDER :in Annexure 4 is quashed and the ORDER :passed by the Deputy Commissioner Land Reforms (Annexure 3) is restored. The writ application is accordingly allowed, but without costs.