CIVIL WRIT JURISDICTION CASE No.908 OF 1986 In the matter of an application under Articles 226 and 227 of the Constitution of India. BAIJNATH PD. VERMA, SON OF CHANDRADEO NARAYAN VERMA, DECEASED, RESIDENT OF VILLAGE JANGALIPUR KUMRAULI, P.S. PIPRAHI, DISTRICT SITAMARHI. ----- PETITIONER Versus 1. THE STATE OF BIHAR. 2. THE COMMISSIONER, TIRHUT DIVISION, MUZAFFARPUR. 3. THE ADDITIONAL COLLECTOR, SITAMARHI. 4. THE DEPUTY COLLECTOR LAND REFORMS, SITAMARHI 5. (i) SHRI HARI KISHORE SINGH, SON OF LATE YUGAL KISHORE SINGH DECEASED, RESIDENT OF VILLAGE CHIMANPUR, P.S. SHEOHAR, DISTRICT SHEOHAR 5. (ii)SHRI RADHA RAMAN SINGH, SON OF LATE YUGAL KISHORE SINGH, RESIDENT OF CHIMANPUR, P.S. SHEOHAR, DISTRICT SHEOHAR, PRESENTLY RESIDING AT PRATAP NAGAR, WARD NO. 26, MOHALLA MAHESHAUL NEAR SOUTH OF RAILWAY GUMTI, P.S. SITAMARHI TOWN, DISTRICT SITAMARHI 5. (iii)SHRI CHANCHAL KUMAR SINGH 5. (iv) SHRI CHUNI KUMAR SINGH, PRESENTLY WORKING AS PEON CHITA HIGH SCHOOL, BOTH SONS OF LATE CHANDRA KALA DEVI, WIFE OF LATE RAGHUBANSH SINGH, GRAND SON OF LATE YUGAL KISHORE SINGH, BOTH RESIDENT OF VILLAGE AND P.O. CHAITA, P.S. MADHUBAN, DISTRICT EAST CHAMPARAN, PIN CODE 845 414. For The Petitioner :Mr. Chittranjan Sinha, Sr. Advocate Mr. Satyavrat Verma, Advocate For The State :Mr. P.K. Singh, A.C. to G.A. 1 P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The petitioner has challenged the orders contained in annexures 3 and 4 dated 9.1.1986 passed by the Commissioner, Tirhut Division, Muzaffarpur and 12.8.1985 passed by the Additional Collector, Sitamarhi setting aside the order contained in annexure-2 passed by the D.C.L.R., Sitamarhi dated 5.7.1979 holding that the mortgaged deed is the deed of conditional sale and as such the provisions of Section 12 of the Money Lenders Act was not applicable and would not help the petitioner. 2 2. Annexure-1 is the mortgaged deed executed on 9.6.1971. By Annexure-1 the lands in question were mortgaged with the respondent no. 5 (substituted by his heirs) for a period of four years in which it was specifically stated that the mortgagee would remain in possession of the land and would utilize the usufruct of the land. It was further stipulated that if the petitioner did not pay the mortgaged amount within a period of four years i.e. by 1975 then the property would have been treated to have been sold to the private respondents. The last date of payment of the borrowed amount was 28.6.1975 however, in the mean time, the Money Lenders Act, 1974 came into force from 20.3.1975. The petitioner filed an application under Section 12 of the Money Lenders Act which is as follows : “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 an usufructuary mortgage relating to any agricultural land, whether executed before or after the commencement of this Act, shall be deemed to have been fully satisfied and the mortgage shall be deemed to have been wholly redeemed on expiry of a period of seven years”. 3. The D.C.L.R., Sitamarhi after issuing notice to the opposite parties allowed the application under Section 12 issued notice to the opposite parties and as a result of the order, the petitioner is said to have come in possession over the said lands sometime in November, 1979. The respondents filed Case No. 249 of 1979 before the Additional Collector, Sitamarhi to set aside the order of the D.C.L.R. holding that the instrument by which the land had been given in 3 mortgage was ‘mortgaged by a conditional sale’ and rejected the plea of the petitioner that it was usufructuary mortgaged. The argument advanced on behalf of the opposite party was that the petitioner was to pay the mortgaged amount within a period of four years and having failed to do so the title of the lands in question passed to the opposite party. 4. The petitioner has moved this Court claiming that both the Courts below had wrongly interpreted annexure-1. Annexure-1 which is a mortgage deed stipulates that the mortgagee would be put into possession on the date of execution of the deed and that he entitled to the usufruct of the land for a period of four years. On completion of four years, the petitioner was to pay the mortgaged amount and recover the possession of the lands. On interpretation of the document, it is clear that it has all the trappings of the usufructuary mortgaged, are found in the mortgage deed. Section 58(d) of the Transfer of Property Act reads as follows: “Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest or in payment of the mortgage-money, or partly in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortage and the mortgagee an usufructuary mortgagee”. 5. A conditional sale envisages that on default of payment of the mortgaged money on a certain date the sale shall become absolute. In a document which comes under the definition of mortgage by conditional sale the possession of the land is not handed 4 over to the mortgagee nor is the mortgagee given any right to utilize usufructs of the land during the period fixed in the mortgaged deed within which the mortgager must pay the mortgaged amount in order to redeem the mortgage. The mortgaged document therefore, cannot be described as ‘a mortgage by conditional sale’. 6. Learned counsel for the petitioner refers to the case of Surendra Prasad Vs. Member, Board of Revenue, Bihar, Patna & Ors. reported in 1995 (1) PLJR 377. This Court finds that the facts of that case was similar to the facts of this case as would be clear from paragraph 5 of the judgment aforesaid. I agree with the reasoning and the decision given by my learned brother. The judgment refers to decisions of the full Bench in the case of Bhuneshwar Prasad Sharma Vs. Smt. Suryamukhi Devi reported in 1989 PLJR 186 (F.B.) when the Court has held that “the larger purpose of the present Act is not in doubt. It is incorporated in the preamble of the Act itself, namely, to grant relief to the debtors in the State of Bihar. Plainly enough it is a beneficient statute intended for what is sometimes picturesquely called as socio economic engineering. The provisions of such a beneficient statutes have necessarily to be given a liberal and meaningful construction. In particular Section 12 of the Act is one of the core Sections directed to that end. It is plainly intended to free the ignorant and some what innocent and oppressed agriculturist from the clutches of wily and atrocious money lenders. This Section, therefore, has to be read in the light of that larger purpose and in the designed absence of any specific definition of an usufructuary mortgage in the Act itself. 5 7. In the present case, the application for redemption under Section 12 was filed within four years as stipulated by the deed and after the Money Lenders Act came into force and, therefore, the petitioner would be entitled to the benefit of Section 12 of the Money Lenders Act and as such the orders contained in annexures 3 and 4 dated 9.1.1986 and 12.8.1985 are quashed. 8. This application is allowed. Patna High Court, 13th of July, 2010 A.F.R./Sanjay (Sheema Ali Khan, J.)