APPEAL FROM APPELLATE DECREE No. 211 OF 1988 Against the judgment and decree dated 11.3.1988 passed by Sri B.K. Derhgawen, Additional District Judge, Patna at Barh in Title Appeal No. 13 of 1981 reversing the judgment and decree dated 28.9.1981 passed in T.S. No. 54/1978 by Sheo Murat Ram, Munsif, Barh. DIPAK SINGH S/O Late Ramdhan Singh R/O Village-Jagatpura, P.S. Matihain, P.O. B.T.P.S. Distt- Berusarai…………………………………………(Appellant) Versus 1. DINESH SINGH S/O Late Mahagu Singh, 2. Santosh Kumar 3. Prashant Gautam @ Panku Kumar 4. Niraj Kumar, (appellants no.2 to 4 are sons of Late Ram Ratan Singh) 5. Nita Kumari 6. Usha Devi 7. Pinki Devi (appellants no. 5 to 7 are daughters of Late Ram Ratan Singh) 8. Smt. Manorma Devi 9. Smt. Sushila Devi 10. Smt. Mira Devi 11. Smt. Manjula Devi 12. Smt. Bula Devi (appellants no.8 to 12 are daughters of late Mahagu Singh) 13. Jhari Singh S/O Late Kira Singh All are residents of village-Jagatpura, P.O. B.T.P.S, P.S. Matihani, Distt- Begusarai 14. Rubi Devi widow of late Jai Ram Singh 15. Sri Ram Singh minor son of late Jairam Singh 16. Heera Devi W/O Sri Ram Gyan Singh All are residents of village-Jagatpura, P.O. B.T.P.S, P.S. Matihani, Distt- Begusarai 17. Smt. Sulena Devi W/O Sri Manoj Singh R/O village, Madhurapur P.S. Teghra Distt-Begusarai ……………Plaintiff-Respondents-Respondents ----------- For Appellant:- Mr. Ram Sumiran Singh, Advocate P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE JYOTI SARAN 2 Shiva Kirti Singh, J, At the time of admission the following substantial questions of law were recorded in the order dated 27.5.1988:- (i) Whether the mortgaged deed in question is an anomalous mortgage or a deed of mortgage by conditional sale. (ii) Whether the suit is barred under Section 12 of the Money Lenders Act. (iii) Whether the order, Exhibit-„C‟ will operate as res judicata 2. By order passed on 9.9.2003 the learned single Judge found difficulty in deciding the appeal and desired that the matter be heard by a Division Bench, particularly to answer question no.2. Under the orders of Hon‟ble the Chief Justice the matter has been listed for hearing by a Division Bench. 3. This Second Appeal has been preferred by the plaintiff- respondent against judgment and decree passed by the learned Additional District & Sessions Judge, Barh whereby appeal of the defendant (respondent) herein was allowed and after reversing the judgment and decree passed by the learned Munsif, Barh the suit for redemption of mortgaged property described in schedule to the plaint and for recovery of its possession was dismissed. 4. The appellate court held that the mortgage in question is a combination of usufructury mortgage and mortgage by conditional 3 sale and therefore it is an anomalous mortgage but for the purpose of Section 12 of the Bihar Money Lenders Act it was a usufructury mortgage and order of the DCLR dated 24.4.1978 (Ext-„C‟) whereby plaintiffs claim for redemption and possession under the Bihar Money Lenders Act was rejected, would operate as res judicata. 5. Under orders of this Court, Ext-„A‟ dated 13.8.1955 has been translated in English and it shows that the nature of the deed has been described as sudbharna baibilwafa (mortgage by conditional sale). The amount of consideration was Rs. 2800/- and the area of land comprised in Plot No. 904 of Khata No. 109 was 1 Bigha, 17 Kattha 18 Dhurs as well as further 1 Kattha of land of Plot No.931 (part) of Khata No.14. The deed clearly recites that on receipt of the sum of Rs. 2800/- to meet various requirements, the mortgagers had put the mortgagee in possession to appropriate its produce in lieu of interest. There is a further stipulation that the principal mortgage amount would be repaid by the mortgagers within seven years in lump sum by cash to redeem the mortgage bond and in case the mortgage amount is not paid within the stipulated period, the mortgagees shall enter into occupation and possession of the mortgaged land as a purchaser without requirement of any notice and they shall get their names entered into the records of landlord and at that time no objection shall 4 be raised by the mortgagers. 6. The order of the learned DCLR contained in Ext-„C‟ treats the mortgage as a mortgage by conditional sale and further holds that suit for foreclosure was not required to be brought by the mortgagee because Section 67 of the Transfer of Property Act, according to learned DCLR required such a suit only in the absence of a contract to the contrary, hence it was held by learned DCLR that the mortgaged deed had matured into a sale deed and title of the mortgagee had been perfected as that of a purchaser. 7. The learned Munsif held the mortgage in question to be a mortgage by conditional sale under which, according to him the mortgager has an inherent right to redeem the suit property before the mortgagee has obtained a decree of foreclosure. Since the defendants in the suit i.e, the mortgagees never took any step for obtaining a decree of foreclosure, hence the right of the plaintiffs (mortgagers) to redeem the mortgaged property remained intact. In support of aforesaid principle the learned Munsif placed reliance upon a judgment of this Court reported in AIR 1958, Patna 67 and a judgment of Orissa High Court reported in AIR 1951 Orissa, 363. In respect of order of the DCLR, Barh (Ext-„C‟), the learned Munsif held that the said order rightly found the mortgage not to be a usufructury 5 mortgage and hence the plaintiffs could not have got relief of recovery of possession under the provisions of Bihar Money Lenders Act but that could not take away their right of filing a suit for redemption of the mortgaged property when the mortgage was a mortgage by conditional sale. 8. From the facts which are not in dispute and from the documentary evidence it is clear that the original plaintiff, Ramdhan Singh, who has now been substituted by his son, Deepak Singh wanted redemption of a mortgage executed by his father, Haso Singh in the year 1955 (1362 fasly) and as per recital in the deed of mortgage the loan of Rs. 2800/- was to be paid within seven years i.e. by 1962 otherwise the mortgaged land was to automatically suffer absolute sale in favour of the mortgagees who had already been put in possession with a right to appropriate the usufruct of the land as interest. 9. On a perusal of the recitals in the deed of mortgage as well as from its declared description, it is a mortgage by conditional sale with usufructury rights. There is absolutely no need to go into the question whether such a mortgage will amount to anomalous mortgage or not because that would not make any difference in interpreting Section 60 of the Transfer of Property Act (T.P. Act) and 6 deciding the issue whether the provision in the deed for sale of the mortgage land in the condition of non payment of principal loan amount within 7 years has to be treated as clog on the right of redemption and therefore void or whether such a provision would convert the mortgage into a transaction of sale without requiring any further act by the parties to the mortgaged deed. 10. Coming back to the three substantial questions of law already noticed earlier, from the discussions made the question no.1 is already answered by the finding given above that the mortgage deed creates a mortgage by conditional sale with usufructury right, which is permissible in a mortgage by conditional sale. 11. So far as the issue of suit being barred by Section 12 of the Bihar Money Lenders Act is concerned, the answer has to be in the negative because Section 12 of the Bihar Money Lenders Act provides for automatic redemption on expiry of a period of 7 years from the date of execution of the mortgage bond relating to any agricultural land if the mortgage is a usufructury mortgage. In the case of only a usufructury mortgage the mortgage shall be deemed to have been redeemed on expiry of a period of 7 years and the mortgagers shall be entitled to recover possession of the mortgaged land in the manner prescribed under the Bihar Money Lenders Rules. Under the relevant 7 rules framed under the Bihar Money Lenders Act, if the mortgagee fails or refuses to deliver possession of the mortgaged property to the mortgager, the Collector under the Act which includes an additional Collector or any officer not below the rank of a Deputy Collector specially empowered by the State Government to act as Collector has been given power to entertain application from the mortgager and after giving a notice and considering the cause shown by the mortgagee and on finding it not satisfactory, to eject the mortgagee and put the mortgager in possession. Such summary procedure vesting power to eject the mortgagee and put mortgagers in possession after considering show-cause is clearly meant only for unambiguous usufructury mortgage. The Collector under the Act, being an executive official has rightly not been vested with the power of deciding complicated issues of facts and law and is authorized to act only in a case relating to usufructury mortgage. As held earlier, the present case relates to a mortgage by conditional sale. Clearly, therefore, the learned DCLR was not competent to grant any relief to the plaintiff/applicant under Section 12 of the Bihar Money Lenders Act. 12. Further, there is no express provision in the Bihar Money Lenders Act to create a bar to filing of redemption suit for a matter 8 covered under Section 12 of the Act. It is also well established in law that ouster of Civil Courts‟ jurisdiction is not to be presumed easily unless the bar is clear and explicit. There is nothing in the Bihar Money Lenders Act to compel the presumption by necessary implication that redemption through a suit has been barred by the legislature. Moreover, since the mortgage in question is essentially a mortgage by conditional sale and not a simple usufructury mortgage hence Section 12 of the Bihar Money Lenders Act was not available to the plaintiff and hence there can be no question of suit being barred by Section 12 of the Bihar Money Lenders Act. 13. The third question, whether the order contained in Exhibit „C‟ passed by the DCLR rejecting the application of the plaintiff under Section 12 of the Bihar Money Lenders Act will operate as res judicata or not, stands answered by the findings in respect of question no.2, already noted above. Since, the suit is not barred by virtue of Section 12 of the Bihar Money Lenders Act, any order passed under that Section cannot operate as res judicata for the purpose of decision by the Civil Courts in a properly constituted Civil Suit. One of the essential features of the principle of Res Judicata is that the earlier suit should have been heard and finally decided by a Court which was competent to try the subsequent suit in which same issue has been 9 subsequently raised. An order or decision by a statutory authority under the Bihar Money Lenders Act cannot be equated with a decision by a Court which is competent to try the present suit. Hence, question no.3 is also answered in negative and it is held that the order contained in Exhibit „C‟ will not operate as res judicata. 14. So far as the main issue in this suit is concerned, the learned Munsif has rightly held that since the defendants in the suit never took any step for obtaining a decree for foreclosure, hence the right of the plaintiffs (mortgagers) to redeem the mortgaged property remained intact. 15. It has been rightly submitted on behalf of the appellant that in a suit of present nature the provision for conditional sale in the mortgaged deed must be held void as it creates a clog on the right of the mortgager to redeem the mortgaged property. This principle flows from a catena of judgments of the Supreme Court as well as this Court such as AIR 1958 Patna 67 (Mt. Raj Mohini Debi Vs. Harihar Mahton) which has been discussed by the learned Munsif and AIR 1969 Patna 64 (Srinivas Vs. Satyanand (Kanhaiyaji J.)) in which the facts were almost identical and a Division Bench of the Court held that the stipulation as to sale is a clog on equity of redemption and is void. Recently, all the relevant principles relating to such a mortgage 10 have been discussed by the Hon‟ble Supreme Court in the case of Harbans Vs. Om Prakash, 2006 (1) SCC 129 and it was held by reference to earlier judgments such as in the case of Seth Gangadhar Vs. Shankar Lal, AIR, 1958 SC 770 that “the Rule against clogs on the equity of redemption is that, a mortgage shall always be redeemable and mortgagers right to redeem shall neither be taken away nor be limited by any contract between the parties”. The same principle flows from the judgment of the privi council in the case of Md. Sher Khan Vs. Seth Swami Dayal, AIR 1929 PC 17 as well as from Section 60 of the T.P. Act. It has been clarified in a number of judgments that the words occurring in the proviso to Section 60 and more particularly the words- “act of the parties” relate to some act on the part of the parties after the creation of the mortgaged deed and not to the conditions or stipulations in the mortgaged deed itself. 16. In view of the aforesaid findings and discussions, we have no hesitation in holding that the judgment and decree passed by the lower appellate court and under challenge in this appeal are bad in law. Accordingly, the same are set aside and the appeal is allowed. The judgment and decree passed by the learned Munsif are restored and as a result the suit stands decreed. 17. In the facts of the case, the parties are directed to bear 11 their own costs of this appeal. (Shiva Kirti Singh, J) Jyoti Saran, J. (Jyoti Saran, J.) Patna High Court Dated the 17th March, 2010 Md. Perwez Alam/AFR